THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


IN  MEMORY  OF 

THOMAS  S.  DABAGH 
I903-I959 

FIRST  DIRECTOR  OF  THE 
LAW  LIBRARY 


Digitized  by  tine  Internet  Arciiive 

in  2007  witii  funding  from 

IVIicrosoft  Corporation 


littp://www.arcliive.org/details/brittonenglislitrOOnicliiala 


Xeoal  Classic  Series 


BRITTON 


Xcgal  Classic  Series. 


OLANVILLE 

lutroduction  by  Joseph  Henry  Beale.  Jr..  A.M..  LL.D. 

BRIXTON 

Introduction  by  lion.  Simeon  L.  Baldwin,  LL.D. 

LITTLETONS  TENURES 

Introduction  by  Eiifjene  Wiimbaupch,  LL.D. 

JVtIRROUR  OF  JUSTICES 

Introduction  by  Hon.  AVilliain  C.  Robinson, 
also 
FLETA,  and  others. 


iBRITTON 

AN    ENGLISH    TRANSLATION 
AND    NOTES 


BY 

FRANCIS  MORGAN  NICHOLS,  M.A.     '  '"^fc-  l^iS, 

OF  lincoIvN's  inn,  bakristkr  at  law 

FORMERLY    FELLOW    OF    WADHAM    COLLEGE 


WITH  AN  INTRODUCTION 


HON.   SIMEON    E.    BALDWIN,    LL.D. 

PROFESSOR  OF    LAW  IN  YALE  UNIVERSITY 


WASHINCTOX,    D.  C. 

JOHN  BYRNE  &  CO. 

LAW    PUBLISHERS    AND    BOOKSELLERS 
I9OI 


3 


^ 

V 


Copyrighted,  1901 

BY 

JOHN  BYRNE  &  COMPANY. 


INTRODUCTION. 


Tjy  SIMEON    E.  BALDWIN,  M.A.,  LL.D.,  PROFESSOR  OF  LAW  IN 
YALE    UNIVERSITY. 

The  founders  of  nations  or  of  national  institutions 
have  a  place  by  themselves.  They  are  judged,  not  like 
other  men,  by  their  own  talents  or  character,  or  im- 
mediate achievements,  but  ratiier  by  the  ultimate 
consequences  of  the  movements  in  which  they  shared. 

Edward  I  is  one  of  the  few  Eng-lish  sovereigns  who 
has  played  a  founder's  part.  Parliamentary  history 
really  dates  from  his  convocation  of  the  assemblage  of 
the  different  estates  of  the  realm  at  Westminster  in 
1275.  The  courts  of  England  also,  if  we  are  to  meas- 
ure them  by  their  relation,  on  the  one  hand,  to  the 
people,  and,  on  the  other,  to  the  law,  had  first  come 
into  existence  under  the  legislation  of  his  reign,  be- 
ginning, at  its  outset,  with  the  Statute  of  Westminster, 
the  First. 

A  few  years  before  his  accession  English  law  had 
been  put  in  form  by  Bracton.  That  great  work,  how- 
ever, was  written  in  Latin,  and  addressed  to  the  scholar. 
It  was  too  long  to  be  a  ready  source  of  information  to 

anybody.     Bulk  and  want  of  indexes  made  such  trea- 

vii 


Vlll 

tises,  before  the  invention  of  the  art  of  printing,  of  lit- 
tle use  in  the  practical  administration  of  judicial  busi- 
ness. An  abridgment  of  Bracton,  also  in  Latin,  was 
prepared  by  the  Chief  Justice  of  the  King's  Bench, 
under  Edward  I,  Gilbert  de  Thornton  ;  but,  like  most 
abridgments,  it  was  read  by  few.  The  treatise  styled 
"  Fleta  "  was  published  at  about  the  same  time ;  but  this, 
again,  was  in  Latin,  and,  so  far  as  it  has  any  preten- 
sions to  originality,  contains  little  of  value  except  its 
account  of  the  constitution  of  the  royal  household. 

Edward  I  had  brought  his  courts,  and  wished  to 
bring  his  law,  into  close  touch  with  the  English  people. 
This  could  only  be  done  by  making  the  way  in  which 
it  affected  them  known  in  a  language  commonly  under- 
stood by  those  who  were  the  natural  leaders  in  the 
community.  Such  was  then  the  form  of  Frencli  used 
in  court  circles.  It  is  more  intelligible  to  a  French- 
man of  our  day  than  the  English  of  the  time  of  Edward 
I  is  to  the  Englishman  of  the  time  of  Edward  YII. 

The  treatise,  of  which  a  translation  is  given  in  this 
volunie,  was  written  in  tliis  "  Law  French,''  as  it  is 
often  called,  but  what  may  be  better  styled  the  French 
of  the  thirteenth  century.  Law  books  have  preserved 
it  for  us,  but  tiiey  took  it  from  the  common  speech  of 
the  date.  No  English  king  wrote  in  English  before 
Henry  V.  If  the  contents  of  a  Latin  document  were 
to  be  communicated  to  the  courtiers  at  the  royal  pal- 
ace, in  the  time  of  Edward  I,  it  was  done  in  French.* 

Who  "  Britton  "  was  is  uncertain.     The  authorshijy 

*  Nichols  Ed.  of  Britton,  I,  xlvi,  note. 


IX 

of  the  book  was  attributed  by  Sir  Edward  Coke  to 
Joljn  Britton  (or  de  Breton),  bishop  of  Hereford.  The 
bishop,  however,  died  in  1275,  and  if  he  wrote  it,  great 
additions  must  have  been  made  by  a  later  hand,  for 
statutes  are  mentioned  which  were  enacted  long  after 
that  date.  It  is  more  ])robable  that  the  author  was 
one  of  the  justices  of  the  inquisitorial  tribunal  insti- 
tuted b}'  Edward  I,  towards  the  close  of  his  reign,  and 
popularly  called  "  Trailbaston."  In  a  commission  is- 
sued in  1300  to  those  who  were  to  hold  it  in  the  coun- 
ties of  Norfolk  and  Suffolk  we  find  the  name  of  John 
le  Breton,*  and  that  of  1304,  for  the  county  of  York, 
includes  "  Johannes  de  Barton  de  Eiton."  f  It  is  sug- 
gested by  Nichols,  in  his  edition  of  Britton,  that  this 
John  le  Breton  was  the  same  person  who  is  variously 
described  in  other  annals  of  this  reign  as  "  Sir  John  le 
Breton,"  "  Sir  John  de  Breton,"  and  "  Johannes  le 
Breton,  dominus  de  Sporle."  ^  We  find  also  that  in 
1305  "  Sir  John  de  Bretaign"  is  assigned  by  the  king 
to  serve  on  a  parliamentary  commission  to  receive  and 
answer  petitions  that  concerned  the  people  of  Gas- 
cony. §  The  title  of  Edward  I  was  "  King  of  Eng- 
land, Lord  of  Ireland,  and  Duke  of  Aquitaine."     Aqui- 

*  Ibid.,  xxi. 

t  Spellman's  Glossary,  Trailbaston.  Diet,  of  Nat.  Biography, 
Barton,  John  de.  Possibly  B.  RITON  may  be  the  fanciful  name 
assumed  by  the  unknown  author. 

X  Nichols'  Britton,  I,  xxi. 

§  Parliamentary  History  of  England,  I,  *  137. 


tiiine  was  the  Koman  name  for  Gascony  and,  twa 
years  before,  the  English  had  regained  possession  of  it 
by  a  treaty  with  France.  In  selecting  the  members 
of  such  a  commission  regard  would  naturally  be  paid 
to  their  familiarity  with  the  French  language  as  it  was 
written,  and  Sir  John  de  Bretaign  was  therefore  pre- 
sumably well  acquainted  with  it,  and  so  qualified,  as 
far  as  scholarship  was  concerned,  to  com})ose  such  a 
treatise  as  Britton.  Spelling  in  those  days,  when  men 
knew  their  mother  tongue  mainly  from  oral  conversa- 
tion, often  varied,  and  "  Bretaign,"  which  was  cer- 
tainly the  same  name  as  "  Bretaigne"  or  "  Britain,"  * 
may  not  improbably  have  been  identical  with  "  Briton," 
"  Britton,"  "  Breton,"  "  Bretoun  "  or  '•  Barton."  The 
Britanni  of  the  Romans  passed  both  into  Britones  in 
monkish  Latin  and  Bretons  in  French. 

The  Baron  of  Sporle  f  can  hardly  have  been  the 
author  of  Britton,  for  he  inherited  his  lands  and  title 
in  the  reign  of  Henry  III,  and  the  book,  if  his,  would 

*  Two  years  later  (1307)  we  find  "  John  de  Britain,  Earl  of 
Richmond,"  as  one  of  tliose  summoned  to  the  Parliament  of  Car- 
lisle. Pari.  Hist,  of  Engl.,  I,  *  133.  Tlie  first  Earl,  Alain  Le 
Roux,  came  with  William  the  Conqueror,  and  being  from  Brit- 
tany, was  known  as  Count  Alain  the  Red,  of  Brittanj-.  His  de- 
scendants made  "  de  Bretagne,"  and  later  "  de  Britain,"  a  part 
of  their  names. — Blanche,  The  Conqueror  and  his  Companions, 
I,  8265. 

f  Ho  is  one  of  the  barons  who  signed  the  famous  protest  to  the 
Pope  in  1301,  and  died  a  few  montlis  before  Edward  I,  his  name 
not  occurring  in  the  writ  summoning  the  last  parliament  of  tliat 
reign.— 1  Pari.  Hist.,  *  123,  *133. 


XI 

have  been  likely  to  go  by  the  name  of  his  barony 
rather  than  by  that  of  his  family.  Probably  it  was 
the  work  of  his  son,  Sir  John  le  Breton,  of  Blath- 
erwyk,  in  Northamptonshire,  who  died  at  a  mature 
age  in  1306  or  1307  (34,  Edward  I),  *  and  who  may 
also  have  been  known  as  "  Sir  John  de  Bretaign." 

But  from  whatever  pen  Britton  may  have  come,  its 
main  authority  is  due  to  the  stamp  which  it  bears  of 
royal  approval.  Like  the  Institutes  of  Justinian  and 
many  of  the  later  barbarian  codes,  it  speaks  in  the 
name  of  the  sovereign.  The  Roman  Emperor  gives 
the  names  of  those  to  whom  he  entrusted  the  work  of 
revising  his  laws.  The  barbarian  codes  often  refer  in 
general  terms  to  the  aid  given  by  the  bishops  and 
judges.f  Edward  I,  in  his  prologue  to  Britton,  simply 
speaks  of  it  as  a  compilation  of  the  existing  laws 
which  he  has  had  put  in  writing  for  the  information 
of  his  subjects,  and  which  he  reserves  the  right  to 
repeal  or  alter  by  the  assent  of  his  council. 

Britton  w^as,  no  doubt,  prepared  with  the  special 
view  of  familiarizing  the  people  with  the  idea  that  the 
administration  of  justice  belonged  only  to  the  crown 
and  to  those  to  whom  the  crown  had  committed  it. 
It  was  the  policy  of  Edward  I  to  curtail  or  sweep 
away,  so  far  as  possible,  the  jurisdiction  of  the  local 

*  Burke's  Commoners,  IV,  230 ;  Nichols'  Britton,  I,  xxii. 

f  See,  for  instance,  the  captions  to  the  Laws  of  Liutfrand, 
King  of  the  Lombards,  and  to  those  of  Peppinus,  King  of 
Italy,  in  the  Corpus  Juris  Gervianici,  1027,  1282. 


Xll 

courts  of  a  manorial  or  feudal  character.*  He  had 
been  at  pains  first  to  reform  his  own.  Shortly  before 
the  publication  of  Britton,  of  the  sixteen  judges  of 
England,  fourteen  had  been  convicted  of  extortion  and 
corruption  in  office. f  The  bench  was  then  reconsti- 
tuted, and  a  favorable  opportunity  thus  given  to  make 
the  king's  courts  more  acceptable  to  the  communitv  at 
large.  The  two  judges  who  were  allowed  to  remain 
seem  to  have  fully  reflected  his  views  as  to  the  royal 
prerog-ative.  One  of  them,  John  de  Metingham,  when 
in  1296  Edward  undertook  to  frighten  the  clergy  into 
submission  by  a  decree  of  general  confiscation,  we  find 
announcing  from  his  seat  in  the  King's  Bench  that 
"  for  the  future  no  manner  of  justice  shall  be  done 
them  in  any  of  the  King's  courts  on  any  cause  what- 
soever, but  justice  shall  be  had  against  them  to  every 
one  that  will  complain  and  request  it  of  us. "  :{: 

The  statutes  of  Gloucester  and  "Westminster  the 
Second,  which  were  the  expression  of  Edward's  ])olicv 
of  concentrating  all  judicial  business  of  importance  in 
the  hands  of  his  own  judges,  had  been  passed  early  in 
his  reign,  but  the  corruption  of  those  to  whom  the 
people  had  then  been  invited  to  entrust  their  concerns 
nmst  liave  militated  strongly  in  favor  of  the  old  order 
of  things.     The  new  judges,  armed  with  Britton  as  a 

*  See  Select  Pleas  in  Manorial  and  other  Seigiiorial  Courts, 
Vol.  I,  in  Selden  Soc.  PuV)l.  in  the  introduction  to  wliich  this 
subject  is  well  and  extensively  discussed. 

t  In  1290.  Pari.  Hist.,  I,  *89  ;  Spellnian. Glossary,  Justitiarius. 

t  Pari.  Hist.,  I,*  104. 


Xlll 

guide  of  procedure,  entered  upon  their  field  of  service 
under  the  most  favorable  circumstances.  Most  of 
Edward's  legal  reforms,  so  far  as  Acts  of  Parlia- 
ment could  go,  had  been  accomplished.  "  The  laws," 
says  Sir  Matthew  Hale,  "  did  never  in  any  one  Age  re- 
ceive so  great  and  sudden  an  Advancement,  nay,  I 
think  I  may  safely  say,  all  the  Ages  since  his  Time 
have  not  done  so  much  in  Reference  to  the  orderly 
settling  and  establishing  of  the  distributive  Justice  of 
this  Kingdom  as  he  did  within  a  short  Compass  of  the 
thirty-five  Years  of  his  Reign,  especially  about  the 
first  thirteen  Years  thereof."  *  But  Acts  of  Parlia- 
ment could  not  execute  themselves.  It  was  through 
his  new-made  bench  that  Edward  expected  to  incor- 
porate them  into  the  life  of  the  people.  It  was  by 
their  aid  also  that  he  proposed  to  re-shape  the  common 
law  in  the  interest  of  a  strong  and  centralized  gov^ern- 
ment.  So  it  was  that,  to  quote  again  from  Hale, 
"  gradually  the  Common  Justice  of  the  Kingdom  came 
to  be  administered  bv  Men  knowing  in  the  Laws,  and 
conversant  in  the  great  courts  of  B.R.  and  C.B.  and 
before  Justices  Itinerant ; "  and  "  partly  by  the  Learn- 
ing and  Experience  of  his  Judges,  and  partly  by  his 
own  wise  Interposition,  he  silently  and  without  Xoise 
abrogated  many  ill  and  inconvenient  Usages,  both  in 
his  Courts  of  Justice  and  in  the  Country."  f 

Britton,   like   Glanville,   is    primarily   a    book   for 

*  History  of  the  Common  Law,  *  158. 
t  Ihid.,  160,  162. 


XIV 

judges  and  lawyers.  It  looks  at  rights  through  rem- 
edies. 

First  (Book  I,  Chapters  1  to  4)  comes  a  description 
of  the  various  officers  of  justice  and  the  general  method 
of  holding  and  conducting  the  King's  courts.  Then 
})ublic  rights  and  wrongs  are  discussed  (Chapters  5  to 
26).  Next  follows  a  statement  of  the  remedies  forcer- 
tain  private  wrongs  (Chapters  27  to  29).  One  chapter 
(30)  is  given  to  a  description  of  tlie  Sheriff's  courts 
or  "  Tourns,"  a  matter  passed  over  by  Bracton.  The 
next  provides  for  the  universal  use  of  standard  weights 
and  measures,  and  for  the  regulation  of  prices  of  bread 
and  beer.  Yillenage  is  the  subject  with  which  the  first 
book  closes. 

Book  11  is  devoted  to  remedies  for  wrongs  affecting 
the  possession  of  real  estate,  and  mainly  to  disseisin. 

Book  III  treats  of  inheritances  and  actions  by  heirs 
and  coparceners. 

Book  IV  takes  up  actions  concerning  the  Church 
establishment  and  mattei's  of  religion,  including  ad- 
vowsons  and  false  oaths. 

Book  V  first  sets  forth  the  procedure  to  obtain 
dower,  and  then  (Chapters  14  to  16)  explains  pleas  or 
writs  of  entry. 

Thus  far  possessory  rights  to  property  have  been 
expounded.  The  last  Book  (VI)  begins  by  taking  up 
property  actions,  and  (Chapters  1  to  3)  tiie  rules  of  in- 
testate succession.  Then  comes  an  explanation  of 
"  Essoins "  or  excuses  for  non-attendance  at  court 
(Chapters  5  to  9),  and  the  work  closes  abruptly  with  a 


XV 

statement  (Chapter  10)  of  the  nature  and  oiBce  of 
attorneys. 

Throughout  the  whole  of  the  treatise  there  is  a 
steady  endeavor  to  guard  and  magnify  the  royal  pre- 
rogatives. The  laws  as  they  are  set  forth  are  to  be 
obeyed  because  the  king  wills  and  commands  it  (Pro- 
logue 1, 1).  He  may  take  jurisdiction  over  all  manner 
of  actions  (I,  2).  Holy  Church  shall  "  retain  her  liber- 
ties unimpaired  " because  the  king  so  wills  (I,  12).  If 
a  royal  charter  is  set  up,  whether  it  be  allowable  or 
false  or  doubtful  can  be  judged  by  none  but  the  king, 
"  car  a  cell  est  respoundre  et  de  jugerqi  en  fu  autotir  " 
(I,  99).  If  a  law  is  to  be  abrogated  or  altered,  the 
power  to  do  this  is  saved  to  the  king  by  the  assent  of 
his  earls  and  barons  and  others  of  his  "  conseyl,"  who 
these  others  might  be  being  left  to  the  royal  pleasure 
from  time  to  time. 

"  Council"  was  of  course  the  name  for  what  we  now 
call  Parliament,  and  the  Judges  were  often  invited  to 
it,  and  took  an  active  part  in  drafting  the  statutes 
which  they  were  afterwards  to  enforce.* 

Trial  by  jury,  in  the  time  of  Britton,  was  in  a  state 
of  transition. 

The  jurors  were  tellers  of  the  facts  in  issue  rather 
than  judges  of  these  facts.  They  were  to  decide  on 
what  they  knew  before  they  entered  the  court  room, 
more  than  on  what  they  learned  at  the  trial.     If  at  its 

*  See  Pollock  &  Maitland,  History  of  English  Law,  3d  Ed.,  I, 
198;  300. 


XVI 

conclusion  they  reported  a  disagreement,  and  declared 
upon  their  oaths  that  they  knew  nothing  about  the  fact 
in  dispute  (I,  126),  a  new  jury  was  to  be  impanelled. 

The  system  also  lacked  one  of  what  we  have  come 
to  consider  its  essential  features,  the  requirement  of 
unanimity. 

In  trials  for  felony,  if  the  jury  failed  to  agree,  the 
Judge  could  examine  them  oneb\^  one,  and  if  he  found 
that  the  majority  knew  the  truth  (I,  I2b),  judgment 
was  to  be  rendered  according  to  their  opinion.  A 
failure  to  agree,  however,  was  only  to  be  reported  as 
a  last  resort.  If  they  (that  is,  apparently,  if  a  majority) 
were  not  certain  where  the  truth  lay,  the  defendant 
was  to  be  discharged  (1,  13). 

In  civil  cases,  after  a  disagreement  had  been  re- 
ported, and  the  Judge,  on  examination  of  each,  had 
found  how  the  majority  stood,  the  parties  were  asked 
if  they  would  consent  to  adding  enough  more  to  the 
majority  to  make  twelve.  If  both  consented,  a  verdict 
could  thus  be  obtained.  If  either  refused  his  assent, 
judgment  went  against  him  (I,  136). 

Felons,  as  now,  were  not  to  be  brought  to  the  bar 
in  irons,  nor  in  any  manner  of  bonds  (1, 14),  but  appar- 
ently this  provision  was  not  always  observed,  for  in  a 
MSS.  copy  of  Britton  in  the  library  of  Cambridge  Uni- 
versity, made  early  in  the  fourteenth  century,  there  is 
substituted  for  it  the  words  "  hors  de  trop  grosfei^s  ei 
hors  de  trop  gros  liensJ* 

*  Nichols'  Ed,  of  Britton,  I,  35,  note,  lix.    Occasionally  felons 


XVll 

A  humane  saving  in  favor  of  burglars  is  worth  no- 
tice. Infants  under  age,  and  poor  persons  who  from 
famine  made  an  entry  for  any  victuals  of  less  value 
than  twelve  pence,  could  not  be  convicted  of  this  crime 
(I,  17).  As  three  half-pence  a  day  was  then  considered 
sufficient  to  support  a  man  (I,  12),  this  exception  in 
favor  of  the  poor  meant  a  good  deal. 

Britton  is  not  without  value  to  the  modern  lawyer 
for  his  definitions. 

An  obligation,  for  instance,  it  is  said  is  a  bond  of 
law  through  which  any  one  is  bound  to  give  or  do 
any  thing,  and  so  is  a  mother  of  a  plea,  and  takes  its 
birth  from  some  preceding  trespass  or  contract  (I,  61). 
Here  is  clearly  brought  out  the  notion  which  was  the 
subject  of  discussion  in  Ogden  v.  Saunders,  12  Wheaton, 
213,  that  a  contractual  obligation  is  the  consequence 
of  a  contract,  and  not  a  part  of  it. 

An  oath  is  "an  affirmation  or  denial  of  anything 
whereby  a  man  is  charged  on  peril  of  his  soul  to  say 
the  truth  "  (II,  237). 

The  foundation  of  the  still  surviving  doctrine  as  to 
the  peculiar  force  which  a  seal  gives  to  a  written  docu- 
ment is  nowhere  more  plainly  traceable  than  in  the 
pages  of  Britton. 

If  suit  is  brought  on  a  writing,  and  the  defendant 
denies  its  execution,  he  cannot  enter  the  plea  of  non 

were  arraigned  in  fetters  as  late  as  the  time  of  Chief  Justice  Holt. 
— Campbell,  Lives  of  the  Chief  Justices  of  England,  III,  24. 


xvm 

est  factum  if  it  bears  his  seal  (1,  64b).*  Tiiat  makes  it 
Ills  deed ;  but  he  may  plead  in  avoidance  that  it  was 
made  after  he  had  lost  his  seal  and  had  had  the  loss 
cried  and  published  b\'  the  churches  and  by  the  markets. 
A  plea  that  the  ])lainliff  was  once  his  seneschal  or 
chamberlain  or  in  other  service  with  him,  and  that,  for 
the  great  confidence  he  had  in  him,  he  gave  him  his 
seal  to  keep,  and  while  he  so  had  it  in  his  keeping  he 
made  the  writing  without  his  knowledge,  was  bad  ;  for 
he  should  have  provided  himself  with  a  more  trusty 
keeper.  In  such  case  his  remedy  was  by  an  action  of 
treason  against  the  plaintiff  by  appeal  of  felony,  or,  if 
he  preferred,  by  a  civil  action  in  trespass. 

Attorney s-at-law  Britton  styles  "general  attorneys." 
They  were  to  be  admitted  by  royal  letters  patent, 
which  could  be  issued  by  the  Chancellor  (II,  286). 
Tlie  Justices  on  the  circuit  could  only  admit  attorneys 
for  a  particular  cause,  upon  the  appointment  of  the 
])arties  to  it  (11,  285b).  All  general  attorneys  could 
levy  lines  and  make  the  record  of  them  {cirographe), 
the  fee  for  this  recoi'd  being  limited  to  four  shillings 
(1.,  37b).  The  class  of  sergeants-at-law  was  already  rec- 
ognized (1, 37b),  and  if  any  appeal  of  felony  were  abated 
by  reason  of  the  mispleading  or  other  default  of  a  ser- 
geant, since  he  ought  to  know  the  way  to  plead,  he  was 
to  be  fined  a  hundred  shillings  (I,  40b),  and  if  the 
error  were  malicious,  punished  criminally  and  deprived 
•of  his  oflBce. 

*  Cf.  Fleta,  133,  et  seq. 


XIX 

As  we  compare  Britton  with  his  predecessors  in 
English  law,  we  find  no  such  prominence  given  to  mere 
iorin  as  marks  the  pages  of  Glanville ;  nor  is  there 
much  of  the  scientific  arrangement  and  civil  law 
learnmg  of  Bracton.  When  put  by  the  side  of  Fleta, 
Britton  appears  to  write  with  a  freer  pen  and  to  cover 
a  wider  field.  Pie  has  also  a  better  understanding  of 
the  sources  of  English  law.*  Torts  receive  more  at- 
"  tention,  for  they  are  now  more  fully  remediable  in  the 
king's  courts  (I,  23,  141,  157). 

The  main  causes,  however,  Avhy  Britton  supplanted 
the  earlier  treatises,  so  far  as  real  use  was  concerned, 
were,  first,  that  he  wrote  in  a  language  commonly  un- 
derstood by  those  taking  part  in  court  proceedings, 
and,  second,  that  he  spoke  in  the  king's  name. 

His  general  view  of  the  royal  prerogative  was  less 
favorable  to  the  liberties  of  the  people  than  that  taken 
by  Bracton.  The  latter,  in  speaking  of  the  laws  and 
customs  of  England,  says  that  "  Quae  quidern  cum 
fuerint  approbatae  consensu  utentium  et  sacramento  re- 
gain conjirmatae,  Tnutari  non  poterunt  nee  destrui  sine 
communi  consensu  et  consilio  eoruTn  omnium  quorum 
consilio  et  consensu  fuerunt  promidgataeP  f 

This  has  a  more  manly  ring  than  the  opening  words 
of  Britton's  first  book,  in  which  the  law  of  the  realm 
is  spoken  of  as  "  here  ordained"  {ceo  qe  cy  est  ordeyne) 

Britton  was  widely  read  while  it  lay  in  manuscript* 

*  See  Holmes,  Hist,  of  the  Common  Law,  266. 
1 1.  1,  7. 


XX 

and  more  than  twenty-five  copies  made  in  the  four- 
teenth century  are  still  preserved  in  English  libraries. 
The  translation  which  follows  was  made  from  one  of 
these  (collated,  however,  with  others),  which  was  found 
at  Lambeth  palace.  It  may  be  one  of  the  original 
publications  furnished  by  the  Crown  for  the  use  of  the 
Church,  and  so  date  back  to  the  last  decade  of  the  thir- 
teenth century.  This  is  the  more  probable  because  it 
bears  no  name  or  title. 

Britton  was  first  printed  about  the  year  1530,  but 
that  edition  is  an  imperfect  one. 

Mr.  Nichols  was  obliged  to  choose  between  different 
manuscripts  in  respect  to  the  apportionment  of  some 
of  the  chapters  between  the  different  books.  Yille- 
nage,  for  instance,  he  assigns  to  the  first,  when  others 
place  it  in  the  second  book. 

The  plan  of  throwing  the  work  into  sections  sepa- 
rately numbered  is  his,  and  was  not  adopted  in  any 
previous  publication. 

This  translation  was  published  by  Mr.  Nichols  in 
connection  with  the  original  in  the  French  text,  to 
Avhich  the  upper  half  of  each  page  Avas  devoted.  His 
book  was  issued  from  the  Clarendon  Press  at  Oxford  in 
1865,  \vith  a  scholarly  introduction,  and  the  valuable 
notes  to  the  translation  which  are  reproduced  in  this 
volume.  It  was  in  two  volumes,  each  paged  separately, 
but  a  marginal  paging  was  also  given  which  follows 
the  paging  of  the  earliest  printed  edition,  above  de- 
scribed. 

In  the  present  volume,  the  paging  used  is  that  which 


XXI 

Mr.  Nichols  placed  upon  the  margin  of  his  volumes ; 
but  in  order  to  facilitate  the  use  of  his  very  excellent 
index,  his  paging  is  reproduced  on  the  margin.  Thus, 
page  30  corresponds  to  page  75  of  his  first  volume 
(I,  75  ).  The  references  in  this  introduction  are  to  the 
pages  as  numbered  in  the  Oxford  edition, 

Simeon  E.  Baldwin. 
Yale  University, 

April,  1901. 


CONTENTS. 


PAGE 

Introduction vii 

Index 615 

ARRANGEMENTS  OF  BOOKS  AND  CHAPTERS. 


BOOK  I. 


OF  THE   AUTHORITY  OF  JUSTICES  AND  OTHER  OFFI- 
CERS, AND  OF  PERSONAL  PLEAS,  INCLUDING 
PLEAS  OF  THE  CROWN. 

Prologue 1 

CHAPTER 

I.  Of  the  Authority  of  Justices 2 

II,  Of  Coroners 6 

III.  Of  Eyres  of  Justices 15 

IV.  Of  the  Chapters  of  the  Eyre 20 

V.  Of  Counterfeiting  the  Seal  and  Coin  ;   and  of  the 

Trial  of  Felons 20 

VI.  Of  Homicides 29 

VII.  Of  Murder  32 

VIII.  Of  Accidents 33 

IX.  Of  Treasons 34 

X.  Of  Arsons 35 

XI.  Of  Burglars ! 36 

XII.  Of  Prisoners 36 

xxiii 


xxiv  CONTENTS. 

CHAPTER  PAOK 

XIII.  Of  Outlaws 41 

XIV.  Of  Inlawry,  or  being  restored  to  law 44 

XV.  Of  Rape 46 

XVI.  Of  Larcenies 47 

XVII.  Of  Abjurations 53 

XVIII.  Of  Treasure-trove,  Wrecks,  Waifs,  and  Estrays. . .  56 

XIX.  Of  the  King's  Rights 58 

XX.  Of  Franchises 62 

XXI.  Of  various  Wrongs 64 

XXII.  Of  the  King's  Officers 71 

XXIII.  Of  Appeals 81 

XXIV.  Of  Appeals  of  Homicide 91 

XXV.  Of  Appeals  of  Robberies  and  Larcenies 96 

XXVI.  Of  Appeals  of  Mayhem 103 

XXVII.  Of  Attachments 105 

XXVIII.  Of  Distresses 113 

XXIX.  Of  Debt 128 

XXX.  Of  the  Sheriff's  Tourns    146 

XXXI.  Of  Measures 153 

XXXn.  OfVillenage 150 

BOOK  II. 

OF  DISSEISINS  AND  THEIR  REMEDIES. 

I.  Of  Suits  concerning  Land,  pleadable  by  Attach- 
ment   174 

II.  Of  Purchase 175 

III.  Of  Gifts 181 

IV,  Of  Joint  Purchases 189 

V.  Of  Conditional  Purchases 193 

VI.  Of  Reversions  and  Escheats 201 

VII.  Of  Purchases  by  Villains 203 

VIII.  Of  Charters 206 

IX.  Of  Seisins 213 

X.  Of  Purchase  of  Rent 220 

XI.  Of  Disseisins 222 

XII.  Where  an  Assize  does  not  lie 233 

XIII.  Of  Remedies  in  Disseisin 238 

XIV.  Of  Views  in  Disseisin 243 

XV.  Of  the  Proceedings  in  Assises 246 


CONTENTS.  XXV 

CHAPTER  PAGB 

XVI.  Of  Title  to  Freehold 250 

XVII.  Of  Exceptions  to  the  Writ 253 

XVIII.  Of  Exceptions  to  the  Person  of  the  Plaintiff 260 

XIX.  Of  Exceptions  to  the  Action 265 

XX.  Of  Assises  turned  into  Juries 268 

XXI.  Of  the  Challenge  of  Jurors,  and  of  the  Trial  of  the 

Assise 277 

XXII.  Of  Judgments 281 

XXIII.  Of  Appurtenances 287 

XXIV.  Of  Common  of  Pasture 296 

XXV.  Of  Remedy  for  Disseisin  of  Common 299 

XXVI.  Of  Exceptions  to  Common 302 

XXVII.  Of  Admeasurement  of  Pasture 305 

XXVIII.  Of  Quo  jure 309 

XXIX.  Of  Reasonable  Estovers 314 

XXX.  Of  Nusances .  316 

XXXI.  Of  Remedy  of  Nusances 320 

XXXTI.  Of  Exceptions  in  the  Assise  of  Nusance 323 

XXXIII.  OfFarms 329 


VOL.   II. 

BOOK  III. 

OF  INTRUSIONS  AND  THEIR  REMEDIES. 

I.  Of  Intrusions 333 

II.  Of  Wardship  ;  of  the  various  Tenures  of  Land  ;  and 

of  the  Remedy  against  Supposititious  Children. .  336 

III.  Of  Marriage 351 

IV.  Of  Homage 355 

V.  Of  Reliefs 374 

VI.  Of  Mortdancester 376 

VII.  Of  a  Mixed  Action SSTy 

VIII.  Of  a  Divisible  Inheritance ! 393 

IX.  Of  the  Plea  De  RationaUli  Parte 398 

X.  Of  Summons,  and  other  proceedings  in  the  Assise 

of  Mortdancester 402 

XI.  Of  Warranties  in  Assise  of  Mortdancester 410 

XII.  Exception  of  '  same  Descent ' 424 


XXVI 


CONTENTS. 


CHAPTER  PACjlIt 

XIII.  Exception  upon  the  word  '  seized ' 43(5 

XIV.  Exception  upon  the  words  '  last  seized ' 429 

XV.  Exception  upon  the  words  '  in  his  demesne ' 431 

XVI.  Exception  founded  on  the  words  ' as  of  fee" 4.'J5 

XVII.  Exception  founded  on  the  words  '  the  day  wliereon 

he  died' '. 488 

XVIII.  Exception  founded  on  the  words  '  of  so  much  land 

with  the  appurtenances ' 442 

XIX.  Exception  founded  on  the  words 'since  the  term'.  443 

XX.  Exception  founded  on  the  words  '  next  heir ' 444 

XXI.  Exception  founded  on  the  words  '  wlio  holds  tlie 

land ' 447 

XXII.  Exceptions  of  Felony  and  Bastardy,  and  otlier  ex- 
ceptions to  the  Assise 450 

XXIII.  Of  Assises  turned  into  juries A')7 

XXIV.  Of  the  Trial  and  Judgmetit  in  Assise  of  Mortdan- 

cester     459 

XXV.  Of  the  writ  called  Quod  permittat 460 

XXVI.  Of  the  writs  of  Cosinage,  Ael,  and  Besael 462 


BOOK  IV. 

OF  PLEAS  RELATING  TO  ADVOWSOKS  AND  THE 
PROPERTY  OF  CHURCHES ;  AND  OF  ATTAINS. 

I.  Of  the  Assise  of  Last  Presentation 467 

II.  Of  the  day  of  Plea  ;  and  of  the  Count  of  the  Plain- 
tiff      469 

III.  Of  Exceptions  in  Assise  of  Last  Presentation  470 

IV.  Of  Exceptions  independent  of  the  Writ    477 

V.  Of  tlie  Verdict  and  Judgment   in   Assise  of  Last 

Presentation 489 

VI.  Of  the  Action  of  Quare  inipedit 492 

VII.  Of  the  Assise  of  Utrum 496 

VIII.  Of  Exceptions  in  the  Assise  of  Utrum 498 

IX.  Of  the  nature  of  an  Oath,  and  of  tlie  process  of 

Attaint 501 

X.  In  what  cases  Attaint  lies .507 

XI.  Of  the  Excuses  of  Jurors  in  mitigation  of  Attaint.  511 
XII.  Of  the  Trial  and  Judgment  in  Attaint 513 


CONTENTS.  xxvii 

BOOK  V. 
OF  PLEAS  OF  DOWER,  AND  ENTRY. 

«HAPTER  PAGE 

I.  Of  the  Nature  of  Dower 518 

II.  Of  the  Establishment  of  Dower 522 

III.  Of  the  Assignment  of  Dower 527 

IV.  Of  the  Remedies  for  recovery  of  Dower 53i5 

V.  Of  Vouching  to  Warrant}'  in  Pleas  of  Dower 53(5 

VI.  Of  Exceptions  respecting  the  Husband's  death ... .  538 
VII.  Of  Exceptions  founded   on   the   invalidity  of  the 
Marriage,  and  on  the  Dower  established  being 

different  from  that  claimed 540 

VIII.  Of  the  Pleadings  when  several  Women  claim  Dower 

of  one  Husband 546 

IX.  Of  Exceptions  relating  to  the  Assent  of  the  Father  548 

X.  Of  common  Exceptions  in  Actions  of  Dower 550 

XI.  Of  the  Judgment  in  an  Action  of  Dower 561 

XII.  Of  the  Plea  of  Right  of  Dower 562 

XIII.  Of  Admeasurement  of  Dower 563 

XIV.  Of  the  Actions  founded  on  Writs  of  Entry 565 

XV.  Of  the  Proceedings  in  an  Action  of  Entry 570 

XVI.  Of  Exceptions  in  an  Action  of  Entry 573 

BOOK   VI. 

OF  PROPRIETARY  ACTIONS. 

Introduction.    Of  the  Plea  of  Right 575 

I.  Of  Proximity  of  Heirs . .  575 

II.  Of  Succession,  and  the  Law  of  Inheritance 577 

III.  Of  Degrees  of  Kindred 584 

IV.  Of  the  proceedings  in  a  Plea  of  Right  before  the 

Court  Baron  and  County  Court,  and  of  its  re- 
moval into  the  Royal  Court 588 

V.  Of  Summons  in  a  Plea  of  Right 597 

VI.  Of  Essoins 602 

VII.  Of  the  Essoin  de  ultra  mare 604 

VIII.  Of  the  Essoin  founded  on  the  King's  Service 608 

IX.  Of  the  Essoin  de  malo  veniendi 609 

X.  Of  Attorneys 610 

Index 615 


BRITTON. 


BOOK  I. 


OF  THE  AUTHORITY   OF  JUSTICES  AND  OTHEK  OFFICERS,  AND 
OF    PERSONAL    PLEAS    INCLUDING    PLEAS   OF   THE   CROWN. 

Prologue. 

Edward*  by  the  grace  of  God,  king  of  England, 
lord  of  Ireland,  and  duke  of  Aquitaine,  to  all  his  faithful 
people  and  subjects  of  England  and  Ireland,  peace  and 
grace  of  salvation. 

Desiring  peace  among  the  people  who  by  God's  per- 
mission are  under  our  protection,  which  peace  cannot 
well  be  without  law,  we  have  caused  such  laws  as  have 
heretofore  been  used  in  our  realm  to  be  reduced  into 
writing  according  to  that  which  is  here  ordained.  And 
we  will  and  command,  that  throughout  England  and 
Ireland  they  be  so  used  and  observed  in  all  points,  sav- 
ing to  us  the  power  of  repealing  extending  restricting 
and  amending  them,  whenever  we  shall  see  good,  by 
the  assent  of  our  earls  and  barons  and  others  of  our 
Council  ;  ^  saving  also  to  all  persons  such  customs  as  by 
prescription  of  time  have  been  differently  used,  so  far 
as  such  customs  are  not  contrary  to  law. 

1  Edward  I. 

2  '  This  Preamble  or  Prologue  is  divided  into  two  parts  ;  first, 

1 


BRITTOK  [I,  *1  K 


CHAPTER  I. 
Of  the  Authority  of  Justices. 

1.  First,  with  regard  to  ourselves  and  our  Court,  we 
have  ordained,  that,  inasmuch  as  we  are  not  sufficient 
in  our  proper  person  to  hear  and  determine  all  the 
complaints  of  our  said  people,  we  have  distributed  our 
charge  in  several  portions,  as  is  here  ordained. 

2.  We  will  that  our  jurisdiction  be  superior  to  all 
jurisdictions  in  our  realm  ;  so  that  in  all  kinds  of 
felonies  trespasses  and  contracts,  and  in  all  manner  of 
other  actions  personal  or  real,  we  have  power  to  give, 
or  cause  to  be  given,  such  judgment  as  the  case   re- 

the  regal  style,  where  he  says,  "  Edward  &c.  ; "  and  then  the 
salutation,  where  he  says,  "and  we  will  and  command  &c.  ; " 
affirming  a  prerogative  in  his  person,  that  what  he  thinks  right 
ought  to  be  held  to  be  law  ;  according  to  the  saying,  "  Quod 
principi  placuit  pro  lege  habetur."  Because  peace  cannot  be 
without  law,  nor  law  without  a  king  :  who  can  change  the  laws 
and  establish  others,  but  not  without  the  assent  of  the  Earls  and 
others  of  his  Council :  '  quiaubi  voluntas  luiius  in  toto  dominatur, 
ratio  plurimum  succumbit.'  (Note  in  MS.  N.)  This  note  is  cited 
by  Selden  as  from  a  MS.  in  his  possession  ;  Diss,  ad  Flet.  p.  468. 
Tlie  passage  from  the  Civil  Law,  "  Quod  principi  &o."  (Inst.  lib. 
i.  tit.  2.  §  6.  Dig.  lib.  i.  tit.  4.  1. 1)  was  imported  into  English  Law 
by  Glanvill,  in  his  Prologue,  and  was  a  frequent  subject  of  con- 
troversy with  subsequent  writers.  See  Bracton  f .  107;  Fleta  16,. 
17.    See  also  Selden.  Diss,  ad  Flet.  466. 


I,  *2.]     OF  AUTIIOKITY  OF  JUSTICES.  JT 

quires  without  any  other  process,  whenever  wa  have 
certain  knowledge  of  the  truth,  as  judge.  And  the 
Steward  of  our  household  shall  take  our  place  within 
the  verge  of  our  household;  and  his  office  shall  ex- 
tend to  the  hearing  and  determining  the  presentments  of 
the  articles  of  our  Crown,  when  we  shall  see  good. 

3.  Further,  we  will  that  Justices  Itinerant  be  assifinied 
to  hear  and  determine  the  same  articles  in  every  county 
and  franchise  every  seven  years  ;  and  that  our  Chief 
Justices  of  Irehind  and  Chester  have  the  like  power. 

4.  With  respect  to  the  Justices  assigned  to  follow  us; 
and  hold  our  place  wheresoever  we  shall  be  in  England, 
we  will  that  they  have  cognizance  of  amending  false 
judgments,  and  of  determining  appeals  and  other 
pleas  of  trespass  committed  against  our  peace,  and  that 
their  jurisdiction  and  record  shall  extend  so  far  as  we 
shall  authorise  by  our  writs. 

5.  "We  will  that  the  Earl  of  Norfolk,  by  himself  or 
another  knight,  be  attendant  upon  us  and  upon  our 
Steward,  to  execute  our  commands  and  the  attachments 
and  executions  of  our  judgments  and  those  of  our 
Steward  throughout  the  verge  of  our  house,  so  long  as 
he  shall  hold  the  office  of  Marshal. 

6.  In  our  household  let  there  be  a  Coroner  to  execute 
the  business  of  the  Crown  throughout  the  verge  and 
wheresoever  we  shall  be  or  come  within  our  realm  ; 
and  let  the  same  person  or  some  other  be  assigned  to 
assay  all  weights  and  measures  in  every  our  verge 
throughout  our  realm  according  to  our  standards ;  and 
these  two  duties  he  shall  not  fail  to  do  by  reason  of 


4  BEITTON.  [I,  *2  b. 

any  franchise,  unless  such  franchise  be  granted  in  fee 
farm  or  in  alms  by  us  or  our  predecessors. 

7.  In  every  count\'  let  there  be  a  sheriff  who  shall  be 
attendant  on  our  commands  and  those  of  our  Justices  ; 
and  let  him  have  record  of  pleas  pleaded  before  him 
by  our  writs  ;  ^  and  under  the  sheriffs  let  there  be  hun- 
dredres  Serjeants  and  beadles  attendant  on  the  sheriffs. 
And  in  every  county  let  there  be  coroners  chosen 
for  keeping  the  pleas  of  our  peace,  as  shall  be  author- 
ised in  the  chapters  concerning  their  office,  and  let  them 
have  record  of  things  relating  to  their  office. 

8.  Moreover  our  will  is,  that  there  be  Justices  con- 
stantly remaining  at  "Westminster,  or  at  such  other 
place  as  we  shall  be  pleased  to  ordain,  to  determine 
common  pleas  according  as  we  shall  authorise  them  by 
our  writs  ;  and  these  Justices  shall  have  record  of  the 
proceedings  held  before  them  by  virtue  of  our  writs. 

9.  Also  our  will  is,  that  at  our  Exchequers  at  West- 
minster and  elsewhere  our  Treasurers  and  our  Barons 
there  have  jurisdiction  and  record  of  things  which 
concern  their  office,  and  to  hear  and  determine  all  causes 
relating  to  our  debts  and  seignories  and  things  inci- 
dent thereto,  without  which  such  matters  could  not  be 
tried ;  and  that  they  have  cognizance  of  debts  owing 
to  our  debtors,  by  means  whereof  we  may  the  more 
speedily  recover  our  own. 

10.  And  we  will,  that  Justices  be  assigned  in  every 
county    to    have  cognizance  in   such  causes  of  petty 

^  The  text  may  admit  of  another  interpretation.  But  see  c.  28, 
Q.  1,  and  note  there. 


I,  *3.]     OF  AUTHORITY  OF  JUSTICES.  5 

assises  and  other  matters,  as  we  shall  assign  them  by 
our  letters  patent,  of  which  causes  we  will  that  they 
have  record.  Let  Justices  also  be  appointed  to  deliver 
the  gaols  in  ever}'^  county,  once  in  every  pleadable 
week,  *  while  they  find  anything  to  do  ;  and  let  them 
likewise  have  record  of  the  pleas  brought  before  them 
and  of  their  judgments. 

11.  And  although  we  have  granted  to  our  Justices 
to  bear  record  of  pleas  pleaded  before  them,  yet  we 
will  not  that  their  record  be  any  warrant  to  them  in 
their  own  wrong,  nor  that  they  be  permitted  to  erase 
their  rolls  or  amend  them  or  record  contrary  to  the  en- 
rollment. And  we  vvill  that  the  power  of  our  Justices 
be  limited  in  this  manner,  that  they  go  not  beyond  the 
articles  of  our  writs,  or  of  presentments  of  jurors,  or  of 
plaints  before  them  made,  save  that  they  shall  have  the 
cognizance  of  vouchers  to  warranty,  and  of  other  in- 
cidental matters  without  which  the  original  causes  could 
not  be  determined.  And  we  forbid,  that  any  have 
power  of  amending  any  false  judgment  of  our  Justices, 
except  the  Justices  w^ho  follow  us  in  our  Court,  who 
are  authorised  by  us  for  that  purpose,  or  ourselves, 
with  our  Council ;  for  this  we  specially  reserve  to  our 
own  jurisdiction. 

12.  AVe  forbid  all  our  Coroners  and  Justices,  and  all 

^  The  same  rule  is  laid  down  in  c.  12.  s.  5,  where  the  expression 
is  chescune  simeyne  en  tens  pledable.  Mr.  Kelhani  interprets  this 
as  excluding  times  prohibited  by  the  church  (see  book  ii.  c.  31  s. 
1)  ;  but  tlie  whole  passage  appears  to  requii'e  further  explanation. 
See  Kelham's  Britton,  p.  8.  n.  (24.) 


-6  BRITTON.        ,  ll,*3b. 

others  to  whom  we  have  given  authority  of  record, 
that  any,  except  our  Steward  and  our  Justices  of 
Ireland  and  of  Chester,  without  our  leave  substitute 
another  in  his  place,  to  do  any  act  of  which  he  him- 
self ought  to  make  record  ;  and  if  anything  be  done 
before  such  substitutes,  we  will  that  it  be  of  no  force, 
though  it  should  be  of  abjuration  or  outlaAvry. 

13.  We  Avill  also,  that  in  counties  and  hundreds,  and 
in  every  freeholder's  Court,  the  Courts  be  held  by  the 
suitors ;  the  like  in  cities  boroughs  and  franchises,  and 
in  sheriffs'  Tourns  and  in  view  of  frankpledge. 


CHAPTER  11. 

Of  Oo7'oners. 

1.  And  because  our  will  is,  that  coroners  shall  in 
every  county  be  the  principal  guardians  of  our  peace, 
to  bear  record  of  the  pleas  of  our  Crown,  and  of  their 
views,  and  of  abjurations  and  outlawries,  we  will  that 
they  be  chosen  according  as  is  contained  in  our  statute 
concerning  their  election  ;  and  when  they  shall  be 
chosen,  we  will  that  in  full  County  they  take  the  oath 
before  the  sheriff,  that  they  will  lawfully  and  without 
demanding  any  reward  make  their  inquests  and  enroll- 
ments, and  do  whatsoever  belongs  to  the  office  of 
coroner. 

2.  Also,  we  will,  when  any  felony  or  misadventure 
has  happened,  or  if  treasure  be  found  under  ground 
and  wickedly  concealed,  and  in  case  of  rape  of  women, 


I,  *4.].  OF  CORONERS.  7 

or  of  the  breaking  of  our  prison,  or  of  a  man  wounded 
near  to  death,  or  of  any  other  accident  happening,  that 
the  coroner  do  speedily,  as  soon  as  he  is  informed  of  it, 
give  notice  to  the  sheriff  and  the  bailiff  of  the  place, 
that  at  a  certain  day  he  cause  to  appear  before  him,  at 
the  place  where  the  accident  happened,  the  four  ad- 
jacent townships  and  others  if  need  be,  whereby  he 
may  inquire  of  the  truth  of  the  casualty.  And  when 
he  is  come,  let  him  swear  the  townships  upon  the  Holy 
Evangelists,  that  they  will  speak  the  truth  of  such  ar- 
ticles as  he  shall  demand  of  them  on  our  behalf.  And 
in  this  case,  and  at  the  sheriffs'  tourns,  and  at  view  of 
frankpledge,  and  in  the  office  of  escheators,  and  in  our 
presence  before  our  Steward,  and  in  the  eyre  of  our 
Justices,  we  will  that  people  be  sworn  though  our  writ 
€orae  not. 

3.  Afterwards,  let  the  coroner  Avith  the  jurors  go 
and  view  the  body,  and  the  wounds  and  blows,  or  if  any 
one  hath  been  strangled  or  scalded  ^  or  by  other  violence 
come  to  his  end ;  and  immediately  after  the  view,  let 
the  body  be  buried.  And  if  the  coroner  find  the  body 
buried  before  such  view  made,  let  him  make  an  enroll- 
ment thereof ;  but  let  him  nevertheless  not  fail  to  have 
the  body  disinterred,  and  view  it  openly,  and  have  it 
viewed  by  the  townships. 

4.  Those  who  are  summoned,  and  come  not  to  the 
coroner's  inquest,  shall  be  in  our  mercy  at  the  coming 
of  our  Justices  at  the  next  assises  in  that  county,  if 

1  Perhaps,  suffocated, — a  sense  suggested  by  Carpentier.  Du- 
oange,  Gloss,  s.  v.  excaldare. 


8  BRITTON.  [T,  *45. 

such  defaults  be  entered  in  the  roll  of  the  coroners  ;  so 
that  neither  our  coroners,  nor  our  escheators,  nor  any 
mere  inquirers,  have  authority  to  amerce  any  one  for 
any  default. 

5.  When  the  coroner  shall  have  a  sufficient  number 
by  whom  he  may  make  his  inquests,  let  him  in  the  first 
place  inquire,  whether  such  person  was  killed  by  felony 
or  misadventure ;  and  if  by  felony,  whether  the  felony 
was  committed  in  or  out  of  a  house,  or  whether  in  a 
tavern,  or  at  a  wrestling-match  or  other  meeting. 
Then  let  it  be  inquired,  w^ho  were  present  at  the  fact, 
great  and  small,  male  and  female ;  and  Avho  are  guilty 
of  the  fact,  and  who  of  aid,  or  of  force,  or  of  command- 
ment or  consent,  or  of  knowingly  receiving  such  felons. 
And  if  the  coroner  on  the  first  inquiry  suspect  conceal- 
ment of  the  truth,  or  that  there  is  need  of  further  in- 
quiry, and  that  by  others,  let  inquiry  be  made  again 
and  again  ;  but  let  him  not  for  any  contrariety  in  the 
verdicts  alter  or  curtail  his  enrollment  in  any  point. 
And  further,  he  must  inquire  of  the  manner  of  the  kill- 
ing, and  with  what  weapon,  and  of  all  the  circum- 
stances. 

G.  And  let  the  sheriff  forthwith  cause  all  those  who 
shall  be  indicted  to  be  taken,  if  they  be  found.  If  they 
be  not  found,  let  the  coroner  inquire,  who  they  are 
who  have  withdrawn  themselves  on  that  account ;  and 
let  the  sheriff  forthwith  seize  their  lands  into  our  hand 
simply,  Avithout  removing  bailiffs  or  putting  in  any 
one  on  our  behalf,  until  the  parties  are  convicted  b}-^ 
judgment  or  cleared  of  the  felony.    Next,  let  him  seize 


I,  *5.]  OF  CORONEKS.  !)• 

all  their  chattels  into  our  hand,  and  appraise  them  by 
good  inquest,  and  that,  whether  they  be  the  chattels 
of  villains,  who  have  fled  and  are  suspected,  or  of  free- 
men, and  cause  the  value  to  be  enrolled  in  the  coroner's 
roll,  and  the  goods  to  be  delivered  to  the  townships  to 
be  answered  for  to  us,  in  case  the  person  indicted  shall 
either  refuse  to  submit  himself  to  justice  in  our  Court, 
or  be  afterwards  attainted  as  a  felon.  Afterwards  let 
it  be  inquired,  whether  any  of  the  persons  indicted 
ever  by  virtue  of  our  writ  of  menace  found  surety  of 
our  peace  to  the  person  killed  ;  and  let  the  names  of 
the  mainpernors  be  enrolled  according  as  shall  be  found 
by  the  verdict. 

Y.  If  there  be  any  one  who  would  seek  vengeance  of 
the  death  by  appeal  of  felony,  let  the  male,  of  what 
age  soever  he  be,  be  received  before  the  female ;  and 
the  next  of  blood  before  one  more  remote.  And  if  the 
plaintiff  is  willing  to  prosecute  his  appeal  within  the 
year  and  day,  let  him  find  in  full  county  two  sufficient 
pledges,  distrainable  to  the  sheriff  of  the  county  in 
whose  bailiwick  the  felony  was  committed,  that  he  will 
prosecute  his  appeal  according  to  the  law  of  the  land, 
and  thereupon  let  him  be  admitted  thereto.  Then  let 
the  coroner  enter  his  appeal  and  the  names  of  his 
pledges.  Afterwards,  let  the  bailiff  of  the  place  where 
the  felony  was  committed  be  commanded  to  have  the 
bodies  of  the  appellees  at  the  next  county  court  to  an- 
swer to  the  plaintiff. 

8.  And  if  he  appeal  several,  some  of  the  fact  and 
some  of  the  force  or  accessory  facts,  to  every  appeal  let 


10  BIIITTOK  [I,  *5  Ik 

two  pledges  to  prosecute  be  entered ;  and  let  the  appeal 
be  entered  separately  against  each  person.  If  the 
bailiff  at  the  second  county  court  testify  that  he  could 
not  find  them,  then  let  it  be  awarded  that  the  princi- 
pals appealed  of  the  fact  be  solemnly  demanded  that 
they  do  come  to  our  peace,  to  take  their  trial  for  the 
felony  whereof  they  are  appealed  ;  and  let  them  be  so 
demanded  from  county  court  to  county  court  until 
they  appear  or  be  outlawed.  And  if  the  plaintiff 
makes  default  at  any  county  court,  then  let  the  exigent  ^ 
stand  over  till  our  coming  into  the  count}'^  or  the  Eyre 
of  the  Justices  ;  and  if  the  plaintiff  will  resume  his  ap- 
peal, let  him  on  finding  other  pledges  to  prosecute  be 
received  thereto,  so  as  he  pray  it  within  the  year  and 
<lay. 

9.  But  whether  those  who  were  appealed  of  consent- 
ing and  of  accessory  facts  withdraw  themselves  or  ap- 
pear, no  exigent  shall  run  against  them,  nor  shall  they  be 
compelled  to  answer  to  the  plaintiff  before  judgment 
be  pronounced  in  the  case  of  the  principal.  But  if  the 
principal  be  outlawed,  then  let  exigents  be  immediately 
awarded  against  the  accessories.  And  when  any  of 
them  is  outlawed,  or  hath  withdrawn  himself  and  is 
suspected,  let  the  coroner  inquire  of  whose  tithing  or 
whose  mainpast  such  fugitive  was,  and  make  his  en  roll - 

1  The  exigend  or  exigent  is  the  writ  or  precept  in  pui-suanee  of 
which  an  absent  defendant  is  exacted  or  required  at  tlie  county 
court,  with  a  view  to  his  outlawry.  The  name  and  tlie  practice 
still  continue.  See  Termes  de  la  ley,  s.  v.  Exigent ;  3  Blackst. 
-Comm.  233.     App.  xix.  ;  4  lb.  319. 


I,  *6.]  OF  CORONERS.  11 

ment  according  to  the  verdict;  and  let  hiiQ  inquire 
of  the  lands  and  chattels  of  every  fugitive,  and  in 
what  place  he  has  had  property  elsewhere  than  in  his 
bailiwick.  And  if  they  appear  before  the  outlawry  of 
the  principal,  let  them  be  replevisable,  and  immedi- 
ately after  outlawry  of  the  principal,  let  them  come  and 
answer  to  the  plaintiff. 

10.  If  the  felony  was  committed  out  of  a  dwelling- 
house,  then  let  the  coroner  inquire,  who  first  found  the 
body,  and  let  him  or  them,  if  there  be  several,  women 
as  well  as  men,  young  as  well  as  old,  be  taken  and  re- 
leased by  pledges,  until  our  coming  into  the  county  or 
the  Eyre  of  the  Justices ;  and  let  the  coroner  cause 
their  names  and  the  names  of  the  pledges  to  be  imbre- 
viated. 

11.  We  forbid  every  coroner,  upon  pain  of  imprison- 
ment and  heavy  ransom,  to  make  his  inquests  of  felo- 
nies accidents  or  other  thing's  belono'lnff  to  his  office, 
by  procurement  of  friends,^  or  to  remove  a  juror  on. 
the  challenge  of  any  party,  or  to  take  anything  bj''  him- 
self or  other,  or  suffer  anything  to  be  taken  by  his 
<;lerk  or  any  person  belonging  to  him,  for  the  exe- 
cuting of  his  office ;  or  to  erase,  or  alter,  or  practise 
any  kind  of  fraud  in  his  rolls,  or  suffer  it  to  be  done. 

12.  If  he  finds  that  any  one  has  come  to  his  death 
by  accident,  then  let  him  inquire  by  what  accident, 
whether  he  was  drowned,  or  fell,  or  whether  he  was 
killed  without  felony  prepensed  of  any,  other,  or  was  a 

J  The  meaning  appears  to  be  :  by  procuring  friends  of  the 
-parties  implicated  to  make  up  the  jury. 


13  BRITTOK.  [I,  *6  h. 

felon  of  himself ;  and  if  he  was  drowned,  whether  in 
the  sea,  or  in  an  arm  of  the  sea,  in  fresh  water,  or  in  a 
well,  or  ditch,  and  by  what  occasion  he  was  drowned ; 
also  from  what  vessel  he  fell,  and  what  things  were  in 
such  vessel,  and  to  whose  hands  they  came,  and  of  what 
value  they  were,  and  who  first  found  the  body.  If  in 
a  well,  then  let  it  be  inquired,  whose  the  well  was.  If 
by  a  fall,  whether  it  was  from  a  mill,  or  from  a  horse, 
or  a  house,  or  a  tree.  If  from  a  mill,  what  things  were 
then  moving  in  the  mill,  who  owned  the  mill,  and  the 
value  of  the  things  therein  then  moving ;  and  likewise 
of  houses,  horses,  trees,  and  carts. 

13,  If  the  person  was  killed,  then  let  it  be  inquired, 
whether  it  was  done  by  man  or  beast  or  any  other 
thing ;  if  by  man,  Avhether  by  the  person  himself,  or 
by  another  ;  and  if  by  another,  whether  the  misad- 
venture happened  by  chance,  or  from  necessity  to  avoid 
death  ;  if  by  a  beast,  whether  by  a  dog  or  other  beast) 
and  Avhether  the  beast  was  set  on  to  do  it,  and  en- 
couraged to  such  mischief,  or  not,  and  by  whom,  and  so 
of  ail  the  circumstances. 

14.  Of  such  as  are  drowned  within  our  realm  by  fall- 
ing from  a  vessel  not  at  sea,  our  will  is,  that  the  ves- 
sel and  whatsoever  shall  be  found  therein  be  appraised 
as  a  deodand  and  enrolled  by  the  coroner,  that  is  to 
say,  whatsoever  was  moving ;  for  if  a  man  happens  to 
fall  from  a  ship  under  sail,  mothing  can  be  deemed  the 
cause  of  his  death,  except  the  ship  itself  and  the  things 
moving  in  it  ;  but  the  merchandise  lying  at  the  bottom 
of  the  ship,  is  not  presumed  to  be  the  occasion  of  bis^ 


I,  *7.]  OF  OORONEKS.  13 

death,  and  so  in  like  cases.  And  of  those  drowned  in 
fountains  and  wells,  we  will,  as  in  the  other  cases,  that 
the  coroners  admit  to  mainprise  the  first  finders,  and 
enroll  their  names  and  the  names  of  their  pledges;  and 
of  those  who  have  come  to  their  death  by  carts  or  mills, 
and  in  the  like  cases,  let  the  coroner  make  his  inquests 
and  enrollments  as  above  directed  where  persons  are 
drowned. 

15.  Whenever  the  coroner  takes  his  inquest  on  the 
body  of  a  person  feloniously  killed,  let  him  cause  one 
or  more  of  kin  to  the  deceased  on  the  side  of  the  father 
or  mother  to  appear  before  him  in  proof  of  Englishery 
according  to  the  custom  of  the  country,  and  enroll  their 
names. 

16.  We  will  also  that  the  coroners  receive  the  con- 
fessions of  felonies  made  by  approvers  in  the  presence 
of  the  sheriff,  whom  we  intend  to  be  his  controller 
in  every  part  of  his  office ;  and  let  them  cause  such 
confessions  to  be  enrolled.  And  when  any  man  has 
fled  to  church,  we  will  that  the  coroner  as  soon  as  he 
has  notice  of  it,  command  the  bailiff  of  the  place,  that 
he  cause  the  neighbours  and  the  four  nearest  town- 
ships to  appear  before  him  at  a  certain  day  at  the 
church  where  the  fugitive  shall  be  ;  and  in  their 
presence  he  shall  receive  the  confession  of  the  falony  ; 
and  if  the  fugitive  pray  to  abjure  our  realm,  let  the 
coroner  immediately  do  what  is  incumbent  on  him. 
But  if  he  does  not  pray  abjuration,  let  him  be  de- 
livered to  the  township  to  keep  at  their  peril. 

IT.  If  the  coroner  be  to  take  an  inquest  of  rape,  let 


14  BRITTOK  [I,  *7  h. 

him  carefully  inquire  into  all  the  circumstances  of  the 
force  and  of  the  felony,  and  make  enrollment  of  the 
presumptive  signs,  such  as  stains  of  blood,  and  tearing 
of  clothes.  If  of  a  wounding,  let  him  inquire  with 
what  weapon,  and  of  the  length  and  depth  of  the 
wound.  Let  him  likewise  enter  in  his  roll  all  judg- 
ments of  death  given  in  his  bailiwick  by  any  other  than 
our  Justices  ;  and  in  such  cases,  we  will  that  their  rolls 
be  a  record.  And  whereas  it  is  declared  above,  that 
coroners  ought  to  make  enrollments  of  appeals  of  fel- 
onies of  the  death  of  a  man,  let  them  do  the  like  in 
appeals  of  rape,  robbery,  larceny,  and  in  appeals  of 
every  other  kind  of  felony. 

18.  It  also  belongs  to  their  office  to  inquire  of  ancient 
treasure  found  in  the  earth,  of  wreck  of  the  sea,  of 
sturgeons  and  whales,  as  soon  as  they  shall  have  notice 
thereof  ;  and  to  attach  and  let  to  mainprise  those  who 
have  found  or  made  away  with  them,  and  to  enroll 
their  names,  and  to  secure  such  findings  for  our  use. 
And  we  Avill  that  our  sheriifs  and  bailiffs  be  attendant 
on  our  coroners,  and  execute  their  precepts. 


I,  *8.]  OF  EYRES  OF  JUSTICES.  15 

CHAPTEE  III. 

Of  Eyres  of  Justices. 

1.  With  respect  to  our  coming,  and  the  Eyre  of  our 
Justices,  we  will  that  general  proclamation  be  solemnly 
made  in  the  markets  cities  and  boroughs  throughout 
the  county,  as  well  within  franchises  as  without,  that 
all  the  freemen  of  the  county,  and  four  men  and  the 
provost  of  every  vill,  and  all  the  mainpernors  and 
those  who  have  been  let  to  mainprise  throughout  the 
county,  appear  at  a  certain  day,  which  shall  be  forty 
days  distant  at  least,  before  us,  or  such  Justices  as  shall 
be  named  in  our  precept  to  keep  the  eyre  in  the  same 
county  :  and  that  all  those  who  claim  any  franchise 
in  the  same  county  be  the  same  day  before  us  or  the 
same  Justices,  and  that  every  one  show  distinctly  in 
writing  what  franchises  he  claims  ;  and  that  all  those, 
who  have  any  complaints  to  make  against  our  minis- 
ters or  bailiffs  or  those  of  others  or  any  persons  what- 
soever, be  there  at  the  same  day,  to  exhibit  such  com- 
plaints and  find  pledges  to  prosecute  ;  and  that  the 
sheriff  of  the  county  have  there  all  such  writs  as  have 
been  adjourned  until  the  eyre,  and  all  the  assizes  of 
novel  disseisin,  mortdancester,  darrein  presentment, 
utrum,  and  of  dower,  and  all  the  prisoners  and  attacli- 
ments.  And  meantime  w^e  will  command  our  Justices 
of  the  bench,  that  they  adjourn  all  the  pleas  of  the 


16  BRITTOK  [I,  *8  h. 

county  and  send  them  before  us  or  such  Justices 
itinerant  in  that  county,  so  that  they  be  there  at  the 
day  named, 

2.  And  as  to  the  coming  of  our  Justices,  our  will  is, 
that  as  soon  as  the}"^  be  come  to  the  place  appointed 
for  holding  the  eyre,  they  produce  the  authorit}'^  they 
have  of  us  by  our  letters  patent,  and  cause  them  to  be 
read  in  the  hearing  of  the  people ;  and  afterwards  let 
him  who  is  first  named  in  the  letters,  show  and  declare 
to  the  people  the  occasions  and  advantages  of  their 
coming  into  that  county ;  this  done,  let  them  receive 
the  essoins  of  the  common  summons,  which  shall  be 
immediately  determined  and  adjourned.  Then  let  the 
essoins  of  pleas  of  land  be  received ;  and  let  these  be 
adjudged  and  the  fourth  day  after  adjourned. 

3.  Next  let  the  letters  whereby  any  persons  whatever 
claim  to  hold  franchises  in  that  county  be  received, 
and  let  their  claims  be  enrolled,  and  a  transcript  of 
the  same  enrollment  be  delivered  to  the  sheriff ;  and 
as  to  all  such  franchises  as  are  not  claimed,  let  the 
sheriff  be  commanded  to  seize  them  into  our  hands  by 
way  of  distress,  and  be  answerable  to  us  for  the  issues, 
until  those  who  shall  claim  them  have  saved  their  de- 
faults for  not  attending  the  summons ;  and  let  them 
^hen  answer  by  what  warrant  they  have  held  them. 

4.  Afterwards  let  the  Justices  take  the  wands  of  the 
,heriff,  and  of  the  lords  of  the  franchises,  and  of  all  the 
other  inferior  bailiffs,  and  then  let  the  sheriff  swear, 
that  he  will  duly  execute  the  lawful  commands  of  our 
Justices,  and  will  well  conceal  the  secrets  and  counsels 


T,  *9.]  OF  EYRES  OF  JUSTICES.  17 

of  their  eyre,  so  help  him  God  and  the  Saints.  And 
after  this  oath  is  taken,  let  the  wand  be  delivered  back 
to  him.  Then  let  the  sheriff  present  all  his  officers  and 
bailiffs,  clerks  and  others,  by  Avhom  the  precepts  of  the 
Justices  and  executions  of  their  judgments  are  to  be 
performed  ;  and  let  them  all  take  the  same  oath  that 
the  sheriff  took,  and  their  wands  be  delivered  back  to 
them, 

5.  And  if  there  be  any  archbishop,  bishop,  abbot  or 
prior,  earl  or  baron,  or  other,  that  claims  the  franchise 
of  return  of  our  writs,  let  him  take  the  same  oath  that 
the  sheriff  took  ;  or  let  them  take  their  wands  in  their 
hands,  and  present  such  bailiffs  in  their  stead  as  will 
take  the  oath  for  them,  and  for  whose  acts  they  will 
be  answerable  as  to  that  which  to  their  office  shall 
belong :  and  then  let  the  wands  be  delivered  by  those 
lords  to  their  bailiffs.  Afterwards  let  proclamation 
be  made,  that  all  persons  belonging  to  franchises, 
except  the  bailiffs,  depart  unto  their  own  homes  until 
further  summons  or  until  a  certain  day. 

6.  Next  let  the  bailiffs  of  the  sheriff  swear,  that  they 
will  truly  present  two  or  four  ^  of  their  bailiwick,  or 
more  or  less,  who  are  not  appealed  of  any  crime,  nor 
are  appellors,  and  such  as  shall  best  know  and  will 

1  According  to  the  so-called  Statute  of  uncertain  date,  but 
probably  of  the  early  part  of  the  reign  of  Edward  I,  entitled  '  de 
Sacramento  ministrorum  regis,'  tico  knights  or prodes  homes  were 
to  be  chosen  by  the  bailiffs,  and  twelve  knights  or  prodes  homes 
to  be  chosen  of  themselves  and  others  of  their  hundred  b}'  the 
first  two.  According  to  Bracton  and  Fleta /o!/r  knights  were  to 
be  first  chosen.     Cf.  Blackst.  Comm.  vol.  iv.  p.  302. 


18  BlilTTOX.  [1,  *y  h. 

inquire  and  discover  secret  acts  concerning  the  breach 
of  our  })eace.  And  when  tiie  names  are  given  in,  let 
those  come  and  swear,  that  tliey  will  lawfully  associate 
to  themselves  such  others,  by  whom  the  truth  may 
best  appear.  Afterwards,  let  them,  together  with 
those  whom  they  have  chosen  for  the  most  sufficient, 
swear,  that  they  will  lawful  presentment  make  of  such 
ciiapters  as  shall  be  delivered  to  them  in  writing,  and 
that  in  this  they  will  not  fail  for  an}'^  love,  hatred,  fear, 
reward,  or  promise,  and  that  they  will  conceal  the 
secrets,^  so  help  them  God,  and  the  Saints.  And  then 
let  the  chapters  be  read  to  them,  and  delivered  to  every 
dozen  separately .^ 

T.  Afterwards,  let  proclamation  be  made,  that  none 
presume  to  amerce  any  man  for  making  default  in  a 
court  baron  or  hundred,  who  shall  at  that  time  be 
before  us  or  our  Justices ;  and  that  no  market  be  kept 
within  ten  miles,  except  in  the  town  where  our  Justices 
shall  be,  if  the  town  is  not  able  to  find  sufficient  pro- 
vision for  such  as  shall  abide  there ;  and  that,  if  any 

^  This  clause  of  tlie  oath  is  not  in  Bracton  or  Fleta,  nor  in  the 
statute  '  for  oaths  of  the  king's  officers.'  In  MS.  iV.  a  form  of 
oath  is  given  in  Frencli  nearly  resembling  that  in  the  text,  and 
concluding, '  mes  vostre  conseil  e  de  ceste  eyre  bien  e  loialmente 
celeray.' 

2  '  He  [q'M.  the  Justice]  shall  then  read  the  articles  distinctly 
in  English.  And  that  which  they  shall  pi"esent,  he  shall  put  first 
in  a  roll,  wliich  shall  be  their  note  and  shall  remain  with  them. 
And  afterwards  of  that  and  the  other  things,  by  command  and 
direction  of  the  more  prudent  of  the  twelve,  he  shall  make  his 
chief  roll.'     (Note  in  MS.  N. ) 


I,  *U>.J         OF  EYKES  OF  JUSTICES.  19 

person  be  come  who  has  no  business  on  hand,  he  shall 
make  his  attorney,  if  he  please,  and  depart  home. 

8,  Afterwards,  let  tlie  coroners,  or  their  heirs,  be 
commanded  to  deliver  to  the  Justices  their  rolls  since 
the  last  eyre ;  and  we  will  that  the  Justices  seal  them 
under  their  seals,  and  forthwith  without  any  examina- 
tion deliver  the  rolls  back  to  them,  so  that  they  be 
every  day  with  their  clerks  before  the  Justices,  while 
they  have  occasion  for  them. 

9.  Afterwards,  let  the  presentments  upon  the  chapters 
delivered  to  the  dozens  be  received  in  writing  ;  and  let 
the  same  be  indented,  so  that  the  Justices  may  have 
one  part  thereof  and  the  other  may  remain  with  the 
presentors.  The  chapters  which  are  to  be  delivered 
to  them  are  not  howev^er  of  any  certain  number ;  for 
as  crimes  increase,  so  much  the  chapters  and  other  rem- 
edies increase.  Some  of  these  chapters  are  concern- 
ing counterfeiters,  murders,  accidents,  and  other  mat- 
ters, as  will  appear  from  the  following  heads. 


20  BRITTON.  [I,  *10  5. 


CHAPTER  ly. 

Of  the  Chapters  of  the  Eyre. 

In  the  first  place,  let  the  old  articles  presented  in 
the  last  eyre  in  that  county  touching  breaches  of  our 
peace,  which  then  remained  undetermined,  be  inquired 
of,  heard,  and  determined.  Of  our  mortal  enemies 
abiding  in  our  land  presentment  cannot  properly  be 
raade,^  but  accusation  and  appeal,  as  will  appear  in  the 
chapter  of  appeals. 


CHAPTER  Y. 

Of  counterfeiting  the  seal  and  coin  •  and  of  the  trial 
of  felons. 

1.  Let  inquiry  be  made  of  forgers,  and  not  only  of 
such  as  counterfeit  our  seal,  but  of  all  those  who  shall 
have  in  any  way  falsified  our  seal,  as  those  who  have 
fraudulently  hung  it  to  any  charter  without  our  leave, 
or  when  it  has  been  stolen  or  robbed  or  otherwise 
obtained,  have  sealed  writs  therewith  without  other 

^  This  appears  to  be  a  correction  of  Fleta  24  (li.  1.  cap.  20.  sect. 
1),  who  puts  treason  as  the  first  article  of  tlie  eyre.  It  does  not 
appear  among  the  matters  enumerated  by  Bracton,  or  in  the 
Capitula  Itineris  (Stat,  incert.  temp.)     But  compare  post.  c.  30. 

8.3. 


I,  *11.]  OF  FORGERS.  21 

authority.  And  also  of  forgers  who  have  counterfeited 
our  coin,  or  put  more  alloy  in  it  than  according  to  the 
form  and  usage  of  our  mint  ought  to  be  put,  or  that 
have  coined  money,  whether  good  or  bad,  in  our  realm 
without  our  leave.  Likewise  of  those  who  have  clipped 
our  coin  or  otherwise  impaired  it.  Of  those  also  who 
have  brought  into  our  realm  counterfeit  money  in  any 
way  resembling  ours  in  despite  and  damage  of  us  and 
our  people. 

2.  Upon  presentment  of  this  felony,  we  will  that  the 
sheriflf  do  cause  all  those  who  are  indicted  of  it  to  be 
instantly  taken,  and  their  bodies  kept  safely  in  prison ; 
and  that  they  be  brought  before  us  or  our  Justices ; 
and,  to  the  intent  that  no  one  may  be  unprepared  with 
his  answer,  let  those  who  are  so  taken  have  fifteen 
days  at  least,  if  they  pray  it,  to  provide  their  defence, 
and  in  the  meantime  let  them  be  safely  kept.  And 
when  they  shall  appear  in  judgment  before  us  or  before 
our  Justices,  let  them  be  there  arraigned  by  the  sheriff 
or  other  officer  on  our  behalf,  and  indicted  of  the 
felony  according  to  the  nature  of  the  presentment. 
And  if  they  will  not  put  themselves  upon  their  ac- 
quittal,^ let  them  be  put  to  their  penance,  until  they 

^  That  is,  if  they  reiuse  to  be  tried  by  an  inquest  or  jury.  This 
sort  of  trial  appears,  in  theory  at  least,  not  to  have  been  con- 
sidered valid  either  in  criminal  or  civil  causes,  without  the  con- 
sent of  the  parties.  Compare  liv.  ii.  c.  20.  §  2.  So  in  liv.  iii.  c. 
23.  §  4,  the  consent  of  the  party  is  extorted  by  the  alternative  of 
a  judgment  against  him.  It  lias  been  a  question,  whether  tlie 
penance  here  described,  whicli  is  referred  to  in  Stat.  West.  I.  c. 
12,  as  prisone  forte  e.f  dure,   was  introduced  by  that  Statute. 


22  BEITTOK  [T,  *11. 

pray  to  do  it ;  and  let  their  penance  be  this,  that  they 
be  barefooted,  ungirt  and  bareheaded,  in  the  worst 
place  in  the  prison,  upon  the  bare  ground  continually 
night  and  day,  that  they  eat  only  bread  made  of  barley 
or  bran,  and  that  they  drink  not  the  day  they  eat,-  nor 
eat  the  day  they  drink,  nor  drink  anytliing  but  water, 
and  that  they  be  put  in  irons. 

3.  If  one  indicted  of  felony  alleges  clergy,  and  be 
found  to  be  a  clerk  and  claimed  by  the  ordinary,  let 
it  be  inquired  how  he  is  suspected  ;  and  if  the  present- 
ers upon  inquiry  find  that  there  are  no  certain  grounds 

Coke  contends  (2  Inst.  178)  that  it  was  previously  used  in  cases 
of  appeals,  (see  post.  c.  24.  s.  7.  ;  Fie.  51,  §  33),  but  was  extended 
by  that  Statute  to  indictments  at  tlie  king's  suit.  Others  liave 
observed  that  no  trace  of  it  is  to  be  found  in  any  authorities 
anterior  to  the  reign  of  Edward  I ;  and  examples  have  been  cited 
from  earlier  records,  showing  that  by  the  practice  of  tlie  previous 
reign,  the  inquest  might  be  taken  by  jury  Avithout  the  consent 
of  the  prisoner,  either  voluntary  or  enforced.  (See  Hale,  Pleas 
of  the  Crown,  vol.  ii.  p.  321  ;  Kelham's  Britton,  p.  35.)  This 
might  appear  to  be  in  some  degree  confirmed  by  tlie  general 
statement  of  Glauville,  that  in  cases  of  treason  where  there  was 
no  appellor,  but  the  prisoner  was  accused  by  common  fame,  tlie 
truth  was  to  be  inquired  by  inquests  and  interrogations  before 
the  Justices.  (Glan.  li.  14.  c.  1.)  On  the  other  hand,  it  does  not 
appear  to  have  been  observed,  that  Bracton,  although  he  doeg 
not  mention  the  particular  means  employed,  expressly  refers  to 
a  prisoner  on  trial  for  felony  being  forced  to  put  himself  upon 
the  inquest  per  j?af nam.  '*  Istam  vero  formam  inquisitionis  per 
patriam  servabunt  justiciarii  generaliter  in  omnibus  inquisition- 
ibus  quae  faciendae  sunt  pro  morte  hominis,  ubi  quis  se  posuerit 
super  inquisitionem  sive  sponte  sive  jier  cautelam  inductus  sive 
per  r'*cessitatem."    Brae.  143  b. 


T,  -^ll  I.]  OF  FOKGERS.  23 

for  suspicion,  let  the  judgment  be  that  ne  be  entirely 
iicquitted ;  and  if  he  is  believed  to  be  guilty,  let  his 
chattels  be  appraised,  and  his  lands  taken  into  our 
hands,  and  his  body  delivered  to  the  ordinary  ;  ^  and 
if  the  ordinary  deliver  him  out  of  prison  before  due 
acquittance  according  to  the  purgation  of  clerks,  or 
if  he  keep  him  so  negligently  as  to  let  him  escape,  or 
out  of  malice  keep  him  in  such  manner  as  to  prevent 
his  coming  to  his  purgation,  and  be  convicted  thereof, 
— in  each  of  these  cases  let  the  ordinary  be  in  our 
mercy .2  And  according  as  the  ordinary  shall  certify 
us  of  the  acquittance  3  of  those  clerks,  we  will  cause 
restitution  to  be  made  them  of  their  goods,  if  they 
have  not  fled  from  our  peace.* 

1  If  the  principal  accused  refused  to  put  himself  on  the  coun- 
try, and  claimed  clergy,  the  accessories  could  not  be  attainted  of 
felony.  A  case  to  this  effect  is  cited  in  the  note  in  MS.  N.  as 
having  occurred  at  Lincoln.  '  The  accessory  put  himself  on  the 
<;ountry  and  by  Sir  John  del  lUe  was  commanded  to  the  gallows. 
But  Sir  Elias  de  Preston  said  "Repeal  that  judgment,  for  the 
principal  never  put  himself,  and  is  not  yet  attainted."  And  he 
was  oi'dered  back  to  prison  and  afterwards  made  his  fine  for  ten 
pounds.'  John  del  Isle  was  a  baron  of  the  exchequer  from  23 
Ed.  I.  to  13  Ed.  II.  (Foss,  Judges,  vol.  iii.  p.  270).  Elias  de  Pres- 
ton is  not  mentioned  in  Mr.  Foss's  work. 

-  •  The  amercement  shall  be  100s.  at  least  ;  and  100/.  for  ail 
escape  from  prison.'     (Note  in  MS.  N.) 

'^  '  Et  sic  habet  ordinarius  recordum  in  eodem.'     (Note  in  MS. 

N.) 

*  '  Hence  the  inquest  may  be  had,  whether  the  clerk  put  him- 
self thereupon  or  not,  for  two  things  ;  namely,  to  know  for  what 


24  BRITTON.  [I,  *11  h. 

4.  For  we  will  that  Holy  Church  retain  her  liberties 
unimpaired,  so  that  she  have  cognizance  of  judging  of 
mere  spirituality,  of  testaments,  of  matrimony,  of 
bastardy,  of  bigamy,  and  in  the  felonies  of  clerks,  and 
in  the  correction  of  sins,  provided  the  ordinaries  take 
of  the  laity  no  money  nor  the  value  thereof,  nor  give 
judgment  of  any  property  except  concerning  testament 
and  matrimony  and  mere  spirituality,  and  of  the  repairs 
of  churchyards  and  defects  in  churches,  and  of  mor- 
tuaries, and  of  tithes,  without  prejudice  to  us. 

5.  And  if  any  ordinary,  either  in  person  or  by  his 
proctor,  demands  one  who  is  a  mere  layman,  or  a  biga- 
mist,* or  of  such  other  condition  that  he  ought  not  to 
enjoy  the  privilege  of  Holy  Church,  we  will  that  he 
be  committed  to  prison  and  punished  by  fine  ;  and  so 
of  a  proctor  who  presents  himself  for  the  ordinary  with- 
out warrant  in  writing. 

6.  If  any  felons  will  confess  their  crimes  and  accuse 
others  and  become  approvers,  let  them  be  put  out  of 
penance,  and  let  their  confessions  be  presently  received 

cause  he  ought  to  be  delivered  to  the  bishop,  and  also  for  his 
chattels,  whether  lie  has  forfeited  them  by  his  flight.'  (Note  in 
MS.  N.) 

1  Bigamus  in  the  canon  law  is  he  that  has  married  two  or  more 
virgins  successively,  or  tliat  has  married  a  widow.  See  Coke, 
Inst.  Pt.  ii.  p.  273  ;  Blackstone,  Conmi.  vol.  iv.  p.  163.  By  the 
council  of  Lyons,  A.  D..  1274,  Bigaini  were  declared  to  be  '  omni 
privilegio  clericali  nudati,  et  coertioni  fori  ssecularis  addicti,'and 
forbidden  under  anathema  to  assume  the  tonsure.  (Sext.  Deci% 
tit.  12.)  This  was  confirmed  in  England  as  to  benefit  of  clergy 
by  the  Statute  4  Ed.  I,  thence  called  Statutum  de  bigamis. 


I,  *12.]  OF  FORGERS.  25 

and  enrolled  by  the  coroner,  and  from  that  day  forward 
let  them  have  of  the  sheriffs  three  halfpence  a  day  for 
their  support. 

7.  When  persons  appealed  at  the  eyre  shall  appear 
for  trial,  and  demand  judgment,  whether  they  ought 
to  answer  concerning  an  act  done  before  the  last  eyre 
and  not  then  presented  in  that  county,  in  all  such  cases 
they  shall  be  put  to  their  answer,^  because  we  will  not 
that  felonies  remain  unpunished  ;  and  if  the  article 
was  not  presented  in  the  last  e\'re,  the  presenters  for 
that  hundred  in  the  former  eyre  shall  be  in  our  mercy 
for  the  concealment,  and  any  of  them  found  to  be  liv- 
ing shall  be  punished  by  imprisonment  and  fine. 

8.  When  the  defendants  have  put  themselves  upon 
the  country,  and  the  jurors  are  come  into  court,  they 
may  be  challenged  in  the  following  form.  Sir,  this 
man  ought  not  to  be  upon  the  jury,  because  he  indicted 
me,  and  I  presume  of  him  and  all  those  who  indicted 
me,  that  they  still  bear  the  same  ill  will  against  me 
as  when  they  indicted  me.  And  we  will  that,  where 
a  man's  life  is  at  stake,  this  exception  shall  be  allowed. 
The}'^  may  also  be  challenged  in  many  other  ways 
besides  this,  as  shall  be  shown  in  treating  of  exceptions. 
And  when  the  accused  either  cannot  or  will  not  chal- 
lenge the  jurors,  or  there  are  jurors  enough  unchal- 
lenged, to  the  number  of  twelve,  let  them  go  to  the 
book.     If  there  are  not  sufficient,  let  the  challenges  be 

^  This  is  mentioned  as  a  valid  exception  by  Bracton,  who  cites 
a  case  of  tlie  9  Hen.,  III.  in  affirmance  of  it.  Brae.  116  b.  140  6. 
141;  soFleta49  (§6). 


26  BRITTOK  [1,  *12  h. 

tried ;  and  if  the  challenges  be  found  true,  so  that 
there  are  not  full  twelve  remaining,  let  another  day 
be  appointed,  and  let  the  sheriff  summon  more. 

9.  When  they  are  to  swear,  let  them  swear  one  after 
another,  that  they  will  speak  the  truth  of  what  shall 
be  demanded  of  them  on  our  part,  so  help  them  God 
and  the  Saints.     And  let  no  falsehood  be  ever  know-  .' 
ingly  practised;  for    they  cannot   swear  in  a  matter! 
of  greater  moment,  than  in  that  of  life  and  member.! 
Afterwai'ds  let  the  jurors  be  charged  of  what  fact  they 
are  to  speak  the  truth.     And  then  let  them  go  and 
confer  together,  and  be  kept  by  a  bailiff,  so  that  no 
one  speak  to  them ;  and  if  any  one  does  so,  or  if  there 
be  any  one  among  them  who  is  not  sworn,  let  him  be 
committed  to  prison,  and  all  the  rest  amerced  for  their 
folly  in  suffering  it. 

10.  If  they  cannot  all  agree  in  one  mind,  let  them 
be  separated  and  examined  why  they  cannot  agree ; 
and  if  the  greater  part  of  them  know  the  truth  and  the 
other  part  do  not,  judgment  shall  be  according  to  the 
opinion  of  the  greater  part.  And  if  they  declare  upon 
their  oaths,  that  they  know  nothing  of  the  fact,  let 
others  be  called  who  do  know  it ;  ^  and  if  he  who  put 

1  The  statements  of  the  text  as  to  receiving  the  verdict  of  a 
majority,  and  as  to  impanelling  a  fi-esh  inquest  in  criminal  cases 
require  to  be  examined  and  compared  with  other  authorities. 
Section  12  appears  to  be  inconsistent.  See  a  learned  note  by  Mr. 
Kelham  upon  this  passage  in  his  translation  of  the  first  book  of 
Britton,  and  the  authors  there  cited.  The  question  as  to  the 
right  of  the  judge  in  criminal  cases  to  discharge  a  jury  without 


i,  *13.]  OF  FORGERS.  27 

himself  on  the  first  inquest  will  not  put  himself  on  a 
new  jury,  let  him  be  remanded  back  to  penance  till  he 
consents  thereto. 

11.  We  will  also,  that  if  any  man,  who  is  indicted  of 
a  crime  touchino:  life  and  limb,  and  perceives  that  the 
verdict  of  the  inquest,  on  which  he  has  put  himself,  is 
likely  to  pass  against  him,  desires  to  say  that  any  one 
of  the  jurors  is  suborned  to  condemn  him  by  the  lord, 
of  whom  the  accused  holds  his  land,  through  greediness 
of  the  escheat,  or  for  other  cause  by  any  one  else,  the 
Justices  thereupon  shall  carefully  examine  the  jurors, 
whether  they  have  any  reason  to  think  that  such  slan- 
der  is  true.     And  often  a  strict  examination  is  neces- 


sary ;  for  in  such  case  inquiry  may  be  made,  how  the 
jurors  are  informed  of  the  truth  of  their  verdict ;  when 
they  will  say,  by  one  of  their  fellows,  and  he  perad- 
venture  will  say,  that  he  heard  it  told  for  truth  at  the 
tavern  or  elsewhere  by  some  ribald  or  other  person  un- 
worthy of  credit ;  or  it  may  happen  that  he,  or  they, 
by  whom  the  jurors  have  been  informed,  were  in  treated 
or  suborned  by  the  lords,  or  by  the  enemies  of  the  per- 
son indicted,  to  get  him  condemned  ;  and  if  the  Justices 
find  this  to  be  the  fact,  let  such  suborners  be  appre- 
hended and  punished  b}"^  imprisonment  and  fine. 

12.  And  if  the  jurors  are  in  doubt  of  the  matter  and 
not  certain,  the  judgment  ought  always  in  such  case  to 
be  for  the  defendant.  If  they  say  that  he  is  not  guilty 
of  the  felony,  the  award  shall  be,  that  he  go  quit,  and 

a  verdict,  has  been  discussed  in  niodeiu  times  in  tlie  case  of 
JRegina  v.  Charlesworth,  1  Best  and  Smitli,  460. 


28  BRITTON.  [I,  *13  h. 

that  he  have  restitution  of  his  lands  and  of  all  his 
goods.  And  if  they  find  that  he  is  guilty,  as  he  hath 
offended  by  treason  against  us,  let  him  be  drawn  and 
condemned  to  death. 

13.  In  felony  of  counterfeiting  there  lies  no  appeal, 
except  between  the  accuser  on  our  behalf  and  the  ac- 
cused, and  between  the  approved,  who  has  confessed 
the  felony,  and  him  whom  he  has  appealed  as  his  ac- 
complice, and  between  a  person  found  in  possession, 
and  another  whom  he  shall  vouch  to  warrant ;  for  in 
these  cases  no  suit  lies,  except  ours. 

14.  With  regard  to  false  writs  or  writs  disavowed  or 
writs  of  false  judgment,  found  in  any  person's  possession, 
we  will,  that  such  persons  be  arrested  and  detained  in 
prison,  until  they  are  warranted,  or  until  those  whom 
they  have  vouched  have  either  put  themselves  on  their 
defence  or  are  outlawed  ;  and  if  the  vouchees  are  out- 
lawed, or  if  they  have  vouched  such  as  are  not  known  in 
the  county,  then  we  will,  that  they  either  acquit  them- 
selves by  the  county  or  be  put  to  penance.  If  they 
are  warranted  by  those  who  cannot  justify  those  writs 
according  to  the  laws  and  usages  of  our  realm,  let 
judgment  be  given  against  the  warrantors ;  and  if  the 
vouchee  refuses  to  warrant,  then  the  course  of  law 
is  such  as  shall  be  afterwards  mentioned.  And  with 
respect  to  false  and  clipped  money  and  money  coun- 
terfeited like  our  coin,  let  proceedings  be  taken  accord- 
ing to  the  statutes  concerning  our  coin,  or  according  to 
what  is  laid  down  concerning  false  writs  found  in  any 
one's  possession. 


I,  *14.]  OF  HOMICIDES.  29 


CHAPTER  VI. 

Of  Homicides. 

1.  Let  inquiry  also  be  made  of  homicides  and  mur- 
ders ;  and  our  will  is,  that  those,  who  command  aid  or 
counsel  others  to  kill,  be  indicted  of  this  felony  as  well 
as  the  principal  actors.  And  inasmuch  as  this  felony 
may  be  committed  under  colour  of  judgment  through 
malice  of  the  judge,  or  under  some  other  pretence,  as 
by  false  physicians  and  bad  surgeons,  and  by  poison 
and  sundry  other  ways,  our  pleasure  is,  that  all  those 
Vfho  have  committed  such  secret  felonies  be  indicted ; 
and  also  those  who  falsely  for  hire,  or  in  any  other 
manner,  have  condemned,  or  caused  to  be  condemned, 
any  man  to  death  by  means  of  a  false  oath. 

2.  According  to  the  presentment  of  this  article  let  it 
be  commanded,  that  all  those  who  are  indicted  be  ap- 
prehended ;  and  if  any  one  suspected  of  this  crime  be 
dwelling  out  of  the  county,  let  his  lands  be  immediate- 
ly seized,  and  his  chattels  appraised  and  delivered  to 
the  townships  ;  and  let  him  afterwards  be  put  in  exigent 
until  he  appear  or  be  outlawed.  And  when  any  felons 
appear  in  judgment  to  answer  of  their  felony,  our  will 
is,  that  they  come  barefooted,  ungirt,  uncoifed,  and 
bareheaded,  in  their  coat  only,  without  irons  or  any 
kind  of  bonds.i  so  that  they  may  not  be  deprived  of 

1  In  MS.  N.  the  above  words,  which  probably  originally  stood 


30  BRITTOK  [I,  *14  h. 

reason  by  pain,  nor  be  constrained  to  answer  by  force, 
but  of  their  own  free  will ;  and  then,  agreeably  to  the 
presentment  against  them,  let  them  be  indicted. 

3.  If  the  prisoners  are  found  guilty,  let  their  judg- 
ment  be  death  for  death,  and  let  their  movable  goods  be 
ours,  and  their  heirs  disinherited  ;  we  will  also  have 
the  year  and  day  of  their  inheritances,  of  whomsoever 
they  are  holden,  that  they  may  remain  one  year  and 
one  day  in  our  hands,  so  that  we  neither  cause  the  tene- 
ments nor  the  woods  to  be  destroyed  or  wasted,^  nor 
the  meadows  to  be  ploughed,  as  was  wont  to  be  done 
in  memory  of  felonies  attainted,  such  tenements  being 
excepted  whereof  the  felons  were  not  invested  or  seised 
in  their  demesne  as  of  fee  ;  for  of  such  lands  as  they 
held  for  term  of  life  or  years,  or  by  fresh  disseisin,  or 
in  fee  farm  rendering  annually  the  true  value,  or  in 
mortgage  or  on  like  condition,  we  will  take  nothing. 

as  in  the  text,  are  erased  and  altered,  in  tlie  same  hand  as  the 
notes  frequently  cited,  as  follows :  ''en  lour  peiore  cote  hors  de 
trop  gros  fers  e  hors  de  trop  gros  liens."  Tins  may  serve  to  show 
that  the  practice  was  not  so  indulgent  as  the  rule  laid  down  by 
our  author. 

^  It  was  the  opinion  of  Bracton  that  the  year  and  day  were 
given  to  tlie  king  in  lieu  of  the  riglit  of  laying  waste  the  lands  of 
felons.  The  Great  Charter  (c.  22)  appears  implicitly  to  give  up 
the  claim  to  waste,  and  to  have  been  so  understood  by  Bracton 
and  the  authors  of  Fleta  and  Britton  (Brae.  129 ;  Fie.  liv.  i.  c.  28, 
§6).  But  both  riglits  were  afterwards  insisted  on  (Brae.  129, 
129  b;  Stat.  Praerog.  Reg.  17  Ed,  II.)  ;  and  such  ai)pears  to  be 
the  present  law  in  cases  of  murder.  See  Hawkins's  Pleas  of  the 
Crown  (8th  ed.),  vol.  ii.  p.  638. 


I,  *15.]  OF  HOMICIDES.  31 

We  will  also,  that  their  lands  aliened  after  commission 
of  their  felonies,  be  escheated  to  the  lords  of  the  fees, 
so  that  immediately  after  judgment  given  it  shall  be 
lawful  for  those  lords  to  demand  by  our  writ  of  escheat 
the  tenements  so  aliened. 

4.  If  any  man  be  found  killed,  and  another  be  found 
near  him  with  the  knife  or  other  weapon  in  his  hand 
all  bloody,  wherewith  he  killed  him,  the  coroner  shall 
be  presently  fetched,  and  in  his  presence  the  felon  shall, 
upon  the  testimony  of  those  who  saw  the  felony  done, 
be  judged  to  death.  The  like  when  a  person  is  found 
in  a  house,  or  other  place  where  one  shall  be  found 
killed, 1  and  the  person  found  alive  is  neither  hurt  nor 
wounded,  and  has  not  raised  the  hue  and  cry,  and  has 
not  charged  any  with  the  felony,  and  shall  not  be  able 
to  do  so. 

5.  We  will  also,  that  the  heirs  of  felons,  begotten 
before  the  felony  committed,  be  disinherited  of  every 
inheritance  which  may  fall  to  them  on  the  part  of  the 
blood  of  the  felon  attainted  by  judgment ;  and  heirs 

1  Bracton  (137,  137  b)  mentions  the  two  instances  here  given^ 
as  cases  of  presumptive  guilt,  in  which  there  is  no  need  of  proof, 
iteuper  corpus  seu  per  patriam,  either  by  duel  or  jury  ;  and  this, 
he  says,  is  an  old  established  law,  antique  constitutio.  I  find  no 
mention  eitlier  in  Bracton  or  Fleta  of  judgment  of  death  for 
homicide  before  the  coroner.  Cf.  Mag.  Char.  c.  17.  The  coro- 
ner's presence  was  required  at  capital  trials  in  courts  of  lords. 
Ante,  c.  3.  s.  17.  In  the  Year  Book  30,  31  Ed.  I,  app.  ii.  p.  545,  a 
thief  taken  with  the  mainour  is  adjudged  to  death,  by  the  cus- 
tom of  Yorkshire,  coram  quatuor  villatis.  Compare  post  c.  16. 
s.  1. 


32  BKITTON.  [I,  *15  h. 

begotten  after  the  felony  committed,  shall  be  excluded 
from  all  manner  of  succession  to  the  inheritance,  as 
well  on  the  part  of  the  mother  as  on  the  part  of  the 
father ;  the  wives  also  of  felons  shall  not  hold  in  dower 
any  tenement  assigned  them  by  such  husbands. 


CIIAPTEK  VII. 

Of  Murder. 

Murder  is  the  felonious  killing  of  a  person  unknown, 
whereof  it  cannot  be  known  by  whom  it  was  done. 
A.nd  our  will  is,  that  for  every  murder  the  hundred  in 
which  it  shall  be  committed  be  amerced, ^  and  if  the  act 
is  found  to  have  been  done  in  two  hundreds,  let  both 
the  hundreds  be  amerced  in  proportion  to  the  extent 
of  each  hundred.  And  it  shall  not  be  adjudged  mur- 
der, where  any  of  kin  to  the  deceased  can  be  found, 
who  can  prove  that  he  was  an  Englishman  and  thus 
make  presentment  of  Englishery  ;  nor,  although  the 
person  killed  was  a  foreigner,  if  he  lived  long  enough 
to  accuse  the  felons  himself  ;  nor  where  any  felon  shall 
be  apprehended  for  the  fact  ;  nor  in  case  of  accident  or 
mischance  ;  nor  where  any  man  shall  have  taken  sanc- 
« tuary  for  the  felony  ;  nor  in  any  case  where  the  felon 
shall  be  known,  so  that  the  felony  may  be  punished 
by  outlawry  or  otherwise  attainted ;  nor  where  two 
or  more  persons  have  feloniously  killed  each  other, 
although  they  be  unknown  or  aliens. 

1 '  At  lOOs.'     (Note  in  MS.  N.). 


1,16.]  OF  ACCIDENTS.  33 


CHAPTEE  YIII. 

Of  Accidents. 

An  accident  is  that  Avhich  occasions  the  death  of  a 
man  without  felony,  as  where  people  die  suddenly  by 
any  sickness,  or  fall  into  the  lire  or  into  the  water,  and 
there  lie  until  they  Jire  quite  dead.  A  mischance  is 
where  a  man  is  killed  by  a  fall  from  a  tree,  ship,  boat, 
cart,  horse,  or  mill,  or  in  the  like  cases,  where  no  felony 
is  committed,  and  in  which  there  is  no  need  of  raising 
the  hue  and  cry,  or  making  any  presentment  by  the 
kindred  of  the  deceased  or  by  the  township  at  the  next 
county  court,  but  the  coroner's  inquest  is  sufficient. 
In  such  mischances,  the  things  which  caused  the 
death  shall  be  adjudged  to  us  as  deodands,  as  is  men- 
tioned before  in  the  chapter  concerning  the  office  of 
coroner.  And  where  a  man  is  felon  of  himself,  his 
chattels  shall  be  adjudged  ours,  as  the  chattels  of 
a,  felon,  but  his  inheritance  shall  descend  entire  to 
his  heirs. 
3 


34  BEITTOK.  [T,  *lfi  f. 


CHAPTER  IX. 

Of  Treasons. 

1.  Treason  consists  of  any  mischief,  which  a  man 
knowingly  does,  or  procures  to  be  done,  to  one  to  whom 
he  pretends  to  be  a  friend.  And  treasons  may  be 
either  great  or  little,  of  which  some  require  judgment 
of  death,  some  loss  of  limb,  pillory,  or  imprisonment, 
and  others  lighter  punishment,  according  to  the  nature 
of  the  case. 

2.  Great  or  high  treason  is  to  com|)ass  our  death  or 
to  disinherit  us  of  our  kingdom,  or  to  falsify  our  seal, 
or  to  counterfeit  our  coin,  or  to  clip  it.  A  person  may 
likewise  commit  great  treason  against  others  in  several 
ways,  as  by  procuring  the  death  of  any  one  who 
trusts  him  ;  as  for  instance  those  who  poison  their 
lords  or  others,  and  those  who  lead  persons  into  such 
perils,  that  they  lose  life  and  member  or  chattels. 

3.  The  judgment  in  high  treason  is  to  be  drawn  and 
to  suffer  death  for  the  felony.  The  same  judgment  is 
incurred  by  those,  who  in  appeals  of  felony  are  attainted 
of  having  counterfeited  or  otherwise  falsitied  the  seal 
of  their  lord,  of  whose  dependence  or  homage  they 
are,  or  of  adultery  with  the  wives  of  their  lords,  or  of 
violation  of  the  dausjhters  of  their  lords  or  tiie  nurses  of 
their  children.  And  if  a  woman  be  attainted  of  any 
treason,  let  her  be  burnt. 


I,  *16  b.]  OF  ARSONS,  35 

4.  Where  persons  are  attainted  of  crimes  of  this 
nature  at  our  suit,  let  them  be  sentenced  for  falsifying 
a  seal,  if  the  act  be  of  small  consequence,  to  judgment 
of  pillory  only,  or  to  lose  an  ear  ;  but  if  the  act  be  of 
importance  and  heinous,  as  touching  disherison  or 
lasting  damage,  they  shall  then  be  judged  to  death. 
And  of  the  other  offence  let  Holy  Church  have  correc- 
tion. 


CHAPTER  X. 

Of  Arsons. 

Let  inquiry  also  be  made  of  those  who  feloniously 
in  time  of  peace  have  burnt  others'  corn  or  houses,  and 
those  who  are  attainted  thereof  shall  be  burnt,^  so  that 
they  may  be  punished  in  like  manner  as  they  have 
offended.  The  same  sentence  shall  be  passed  upon 
sorcerers,  sorceresses,  renegades,  sodomites,  and  heretics 
publicly  convicted.^ 

^  As  to  this  punishment  for  arson  by  burning,  which  is  not 
mentioned  in  Bracton  or  Fleta,  see  a  record  of  5  Hen.  III.  cited 
by  Sir  Samuel  Clarke  in  his  edition  of  the  first  book  of  Fleta,  c. 
18.  p.  36  n.  (d),  and  by  Mr.  Kelham  in  his  notes  on  the  first  book 
of  Britton,  p.  40. 

2  It  seems  that  as  to  these  offences,  though  the  king's  court  was 
in  general  ancillary  to  the  ecclesiastical  tribunal,  it  sometimes 
acted  independently.  '  Burners  of  corn  and  houses,  wives  guilty 
of  treason  against  their  husbands,  sorcerers,  sodomites,  renegates, 
and  misbelievers,  run  in  a  leash  (currunt  en  une  leesse)  as  to 
their  sentence  of  being   burned.     But  the  inquirers  of  Holy 


36  BEITTON.  [I,  *17. 

CHAPTEE  XI. 

Of  Burglars. 

Let  inquiry  also  be  made  of  burglars.  Such  we  hold 
to  be  all  those  who  feloniously  in  time  of  peace  break 
churches,  or  the  houses  of  others,  or  the  walls  or  gates 
of  our  cities  or  boroughs.  Infants  under  age,  and 
poor  people,  who  through  hunger  enter  the  house  for 
victuals  under  the  value  of  twelve  pence,  are  excepted  ; 
as  are  also  idiots  and  madmen,  and  others,  who  are 
incapable  of  felony  ;  and  those,  who  enter  into  any 
tenement  of  seisin  in  respect  of  some  right  which  they 
think  they  have,  are  not  held  to  be  burglars.  The 
punishment  of  such  felons  is  death. 


CHAPTER  XII. 

Of  Prisoners. 

1.  Let  inquiry  also  be  made  of  those  who  have  bro- 
ken our  prison ;  for  to  escape  from  the  prison  of  an- 
other is  no  felony.     We  will  that  a  prison  be  accounted 

Church  shall  make  tlieir  inquests  of  sorcerers,  sodomites,  rene- 
gates,  and  misbelievers  ;  and  if  they  find  any  such,  they  shall 
deliver  him  to  the  king's  court  to  be  put  to  death.  Nevertheless, 
if  the  king  by  inquest  find  any  persons  guilty  of  such  horrible 
sin.  he  may  put  them  to  death,  as  a  good  marshall  of  Christen- 
dom (come  bon  Mareschal  de  la  Chrestienete).'  (Note  in  MS.  N.) 


I,  *17 1  ]  OF  PRISONERS.  37 

a  place  limited  by  us  within  certain  bounds  for  the 
keeping  of  the  bodies  of  men,  which  bounds  we  forbid 
on  pain  of  death  any  one  to  pass  with  a  felonious  in- 
tent of  escaping  ;  and  if  any  one  having  such  intent  is 
taken,  and  is  attainted  of  compassing  that  felonious 
intent,  let  him  receive  judgment  of  death^^ 

2.  If  the  prisoner  was  in  the  custody  of  any  one 
claiming  the  wardenship  in  fee,  let  the  franchise  be 
seized  into  our  hands.  And  if  the  prisoner,  who  made 
his  escape,  has  escaped  from  the  custody  of  any  one 
of  our  officers,  let  that  officer  be  amerced  at  100s.  in 
the  eyre  of  the  Justices.  And  if  he  who  thus  escaped 
was  an  approver,  let  the  warden  be  ransomed  at  our 
will.  If  any  prisoner  escape  from  the  custody  of  a 
township,  let  the  township  be  in  our  mercy  in  the  eyre 
of  the  Justices,  according  to  the  custom  of  the  coun- 
try ;  and  if  from  the  custody  of  a  private  person,  let 
such  person  be  amerced;  and  if  any  gaoler  be  suspect- 
ed of  having  consented  to  the  escape,  let  him  be  taken 
and  indicted  for  consenting  to  the  felony ;  and  if 
he  be  found  guilty  of  consenting,  let  him  have  judg- 
ment of  death. 

3.  As  to  prisoners,  we  will  that  none  be  put  in  irons 
but  such  as  have  been  apprehended  for  felony,  or 
are  imprisoned  for  trespasses  committed  in  parks  or 

1  This  passage  may  serve  to  assist  in  ascertaining  the  age  of 
the  present  book.  'By  the  Stat,  de  frangentihus  prisonam  (23  Ed. 
I.)  it  was  enacted  that  none  should  undergo  sentence  of  life  or 
limb  for  breaking  of  prison  only.  See  Introduction  by  the 
Editor. 


38  BRITTON.  [I,  *18. 

vivaries,  or  detained  for  arrears  of  accounts  ;  and  Ave 
forbid  their  being  j)ut  to  any  pain  or  torture  othei'- 
wise  than  by  law  they  ought ,^  or  that  any  })erson  be 
disseised,  while  in  prison,  of  anything  which  sliall  be- 
long to  hiin.  Their  lands  and  goods  shall  be  seized 
into  our  hand,  but  without  ousting  anything ;  the 
prisoners  and  their  families  shall  be  supported  out  of 
their  own  goods  as  long  as  they  remain  in  prison,  and 
none  of  their  bailiffs  shall  be  removed,  nor  others  put 
in.  And  when  they  have  lawfully  acquitted  them- 
selves, all  that  was  theirs  shall  be  delivered  back  to 
them  ;  and  if  anything  belonging  to  them  shall  in  the 
mean  time  have  been  removed,  Ave  will  in  such  case  af- 
ford our  especial  aid  to  recover  it  and  to  punish  the 
offenders.  But  if  judgment  of  death  pass  upon  them, 
Ave  Avill  that  then,  and  not  before,  our  officers  put  out 
their  Avives  and  their  bailiffs,  and  cause  their  chattels 
and  lands  to  be  seized  into  our  hand,  and  that  their 
movable  goods  be  appraised  by  inquest  of  office  of  the 
coroner,  and  delivered  to  the  toAvnships,  Avho  shall  be 
answerable  to  us  in  the  eyre  of  the  Justices. 

4.  If  any  person  die  in  prison,  our  pleasure  is,  that 
the  coroner  go  and  vieAV  the  body  and  take  a  true  in- 
quest of  his  death,  in  Avhat  Avay  it  has  happened. 
And  if  the  inquest  find  that  his  death  Avas  hastened  by 

*  '  Note,  that  foi*  a  felon  slain  in  prison  judgment  of  homicide 
shall  be  given.  For,  though  he  was  lawfully  condemnable  for 
the  felony,  yet  it  is  necessary  that  it  pass  by  judgment.  For  we 
ought  not  to  hold  them  absolutely  felons  until  the  law  has  con- 
demned them.'     (Note  in  MS.  N.) 


I  *18  h.]  OF  PKISONERS.  39 

the  harsh  keeping  of  his  gaolers,  or  by  pain  unlawfully 
inflicted  on  hira.  then  let  the  body  be  buried,  and  let 
all  those,  who  are  indicted  as  being  the  cause  of  his 
death,  be  immediately  apprehended  and  detained  as 
felons  homicides. 

5.  And  we  will,  that  in  time  pleadable  our  gaols  be 
delivered  once  in  every  week  of  all  prisoners  deliver- 
able, such  being  excepted  as  are  not  to  be  delivered 
without  our  special  command. 

6.  Prisoners  shall  in  general  be  answerable  to 
such  as  shall  implead  them  as  long  they  remain  in 
prison ;  others  shall  likewise  be  answerable  to  them  ; 
and  essoins  shall  be  allowed  to  them,  as  Avell  as  to 
others,  neither  shall  they  lose  anything  by  any  de- 
fault. But  prisoners  apprehended  for  felony  we  will 
by  no  means  suffer  to  implead  or  be  impleaded  by  any 
one,  unless  for  some  greater  felony,  so  that  a  greater 
felony  be  not  stifled  or  covered  by  a  less.  But  our 
will  is,  that  such  prisoners  may  allege  as  an  exception 
in  every  lesser  plea  whereof  they  shall  be  impleaded, 
not  being  the  cause  for  which  they  have  been  appre- 
hended, whether  the  plea  be  moved  against  them  before 
their  apprehension  or  after,  that  they  are  not  bound 
to  answer  such  pleas,  until  they  are  acquitted  of  the 
greater  cause  for  which  they  are  detained. 

7.  We  forbid  any  one  to  take  money,  or  the  value 
thereof,  for  receiving  prisoners,  or  to  delay  receiving 
them,  or  to  take  for  the  keeping  any  prisoner  more 
than  four  pence,  on  pain  of  ransom  and  fine.  Of 
the  poor  let  nothing  be   taken,  and  let   no  prisoner 


40  BEITTOK  [I,  *19. 

be  longer  detained  for  default  in  payment  of  such 
fees. 

*8.  And  we  will,  that  whatever  contracts  shall  be 
made  in  prison  by  prisoners  not  taken  or  detained  for 
felony  shall  be  held  valid,  unless  made  under  such  dis- 
tress as  includes  fear  of  death  or  torture  of  body  ;  and 
in  such  case  they  shall  reclaim  their  deed,  as  soon  as 
they  are  at  liberty,  and  signify  the  fear  they  were 
under  to  the  nearest  neighbours  and  to  the  coroner ; 
and  if  they  do  not  reclaim  such  deeds  by  plaint  within 
the  year  and  day,  the  deeds  shall  be  valid. 

9.  Those  Avho  claim  the  custody  of  any  prison  in  fee 
shall  not  detain  a  prover,  who  has  confessed  himself  to 
be  a  felon  and  appealed  others  of  the  felony,  beyond 
a  day  and  a  night,  but  shall  send  him  forthwith  to  our 
prison  which  is  in  our  own  hand,  on  peril  of  forfeiting 
the  said  custody  ;  and  no  other  person  shall  keep  in 
prison  any  one  apprehended  for  felony  beyond  a  day 
and  a  night,  but  shall  send  him  forthwith  to  our  prison  ^ 
on  pain  of  ransom.  And  therefore  with  respect  to  this 
article,  let  it  be  inquired,  who  has  imprisoned  another 
or  detained  him  wrongfully  in  his  custody,  or  in  our 
prison  maliciously    and    wrongfully    under  colour  of 

^This  rule  was  subject  to  an  exception,  where  there  was  a 
franchise  of  Infangthef  or  Utfangthef  ;  for  the  lord  might  keep 
those  in  his  prison  whom  he  could  judge  in  his  court.  Brae. 
1225,  123.  The  abbot  of  Peterborough  in  the  parliament  of  3 
Ed.  I.  established  his  right  to  keep  in  his  own  prison  twenty- 
nine  prisoners  of  his  liberty  appealed  of  homicide  in  the  county 
court  of  Northampton.     Chron.  Petroburg.  p.  31. 


I,  *19  5.]  OF  OUTLAWS.  41 

judgment  ;  and  let  such  as  shall  be  convicted  thereof 
be  punished  by  imprisonment  and  by  ransom,  which 
shall  be  greater  or  less  in  proportion  to  the  offence. 


*CHAPTER  XIII. 

Of  Outlaws. 

1.  In  the  next  place,  let  inquiry  be  made  of  felons 
outlawed,  and  of  such  as  have  abjured  the  realm  for 
felony,  who  have  returned  without  our  leave ;  and  of 
those  who  knowingly  receive  them.  And  because  it 
is  needful  that  every  one  should  know  the  danger  of 
receiving  such  persons,  our  will  is,  that  all  who  are  of 
the  age  of  fourteen  years  ^  or  u[)\vards  shall  take  an 
oath  to  us,  that  they  will  be  faithful  and  loyal  to  us,  and 
will  neither  be  felons  nor  assenting  to  felons ;  and 
that  every  one  be  in  some  tithing  and  pledged  by  their 
tithingmen,  except  persons  in  religion,  clerks,  knights 
and  their  eldest  sons,  and  women  ;    and  let  the  obli- 

1  Bracton  (124b)  and  Fleta  (p.  40)  mention  the  age  of  twelve 
years  as  the  time  of  taking  the  oath  ;  and  this  is  in  some  degree 
confirmed  by  the  terms  of  the  Stat.  Marl.  c.  25.  The  Mirroi-. 
however,  as  printed  Cp.  13,  283),  agrees  with  our  author  in  fixing 
the  time  at  fourteen  years.  Coke  (2  Inst.  121,  147)  cites  both 
Britton  and  the  Mirror  as  naming  the  age  of  twelve,  and  says. 
that  where  old  books  mention  sometimes  fourteen  years,  it  is  but 
misprinted.  The  mistake,  however,  if  it  be  one,  appears  to  run 
through  all  the  manuscripts.  Compare  Brae.  115  6,  where  the 
age  of  fifteen  is  mentioned  as  the  time  for  persons  of  higher 
station  to  take  a  similar  oath. 


42  BEITTON.  [I,  *20. 

gation  of  the  pledge  be  this,  that  if  they  do  not  pro- 
duce those  for  whom  they  are  pledged,  to  be  amenable 
to  justice  in  our  Court  when  required,  the  tithingmen 
with  the  tithings  shall  be  in  our  mercv.  With  regard 
to  clerks,  knights,  persons  of  religion,  and  women,  our 
pleasure  is  that  the  head  of  every  household  be  answer- 
able for  all  his  chief  domestics,  and  that  they  answer 
for  those  under  them.  As  to  guests,  we  will  that  every 
one  answer  for  his  guest  that  he  shall  have  harboured  for 
more  than  two  nights  together,  so  that  the  first  night 
he  shall  be  deemed  a  stranger  and  uncouth,^  the  second 
night  a  guest,  and  the  third  night  a  hoghenhine.^ 

2.  And  for  the  maintaining  of  peace,  we  will  that 
when  a  felony  is  committed,  every  one  be  ready  to  pur- 
sue and  arrest  *the  felons,  according  to  our  Statutes  of 
Winchester,  with  the  compan}-  of  horns  and  voices 
from  township  to  township,  until  they  are  either  taken 
or  have  been  pursued  as  far  as  the  chief  town  of  the 
county  or  franchise.  We  will  also,  that  every  one  who 
flies  from  our  peace  forfeit  his  chattels  to  us  for  such 
flight,  if  he  be  suspected  of  felony,  although  he  be 
afterwards  acquitted  of  the  principal  fact.  And  if  it 
be  murder  or  other  felony  concerning  the  death  of  a 
man,  let  such  felony  be  presented  at  the  next  county 
court  by  one  or  more  townships,  and  by  the  first  finder 
and  the  kindred  of  the  person  killed,  that  is  to  say,  by 
one  or  more  of  kin  on  the  part  of  the  father,  or  on  the 

*  Anglo-Saxon,  uncuo,  unknown, 

*  Anglo-Saxon,  agen  hina,  his  own  hind  or  domestic. 


I  *20  J.]  OF  OUTLAWS.  43 

part  of  the  mother,  according  to  the  custom  of  the 
county. 

3.  If  one  or  more  be  appealed  of  the  death,  and 
others  of  the  force  and  accessory  facts,  let  the  princi- 
pals be  first  demanded  at  three  county  courts  to  come 
and  answer  concerning  the  felony,  and  if  they  do  not 
come  at  the  fourth  court,  and  are  not  mainprised 
to  appear  at  the  fifth,  they  shall  be  outlawed  at  the 
fourth.^  A  woman  however  cannot  properly  be  out- 
lawed because  she  is  not  appointed  to  an\^  tithing  or 
to  the  law,  but  she  may  be  waiv^ed,  which  is  equivalent 
to  outlawry. 

4.  As  to  the  punishment  of  outlaws  in  their  lifetime 
for  their  felonies,  their  judgment  shall  be  this,  that,  since 
they  will  not  be  amenable  to  the  law,  they  be  fore- 
judged from  all  law,  and  put  out  of  our  peace,  and  be 
answerable  to  all,  and  none  to  them,  and  be  judged 
felons,  as  shall  also  all  those  who  knowingh''  receive 
them  or  bear  them  company  after  their  outlawry  ; 
and  he  w^ho  shall  kill  them  shall  be  acquitted  of  their 
death,  except  in  cases  where  they  shall  offer  to  sur- 
render themselves  or  where  they  might  have  been 
otherwise  taken;  neither  in  appeals  shall  they  be 
heard  against  any  man  ;  and  if  they  are  taken,  and  found 

1  The  practice  has  been  to  proclaim  a  fugitive  at  five  county 
courts,  so  that  he  is  not  adjudged  an  outlaw  until  the  fifth  ;  and 
Bracton  agrees  with  this  practice.  He  says,  however,  that  the 
proceeding  at  the  first  court  is  merely  a  calling  of  the  fugitive, 
and  is  not  part  of  the  outlawry,  and  therefore  the  fifth  court  is 
•<:aUed  the  fourth.    Brae.  125  b. 


44  BRITTON.  [I,  *21. 

to  be  outlawed  by  record  of  the  roll  of  the  coroner,  they 
shall  be  hanged,  and  their  chattels  shall  be  ours,  and 
their  heirs  disinherited  of  every  kind  of  inheritance. 


CHAPTER  XIV. 
Of  Inlaw ry^  or  heing  restored  to  law. 

1.  Inlawry  in  many  cases  ought  to  be  granted  of 
right,  and  in  others  it  may  be  of  favour;  and,  where 
of  favour,  the  outlaws  ought  always  to  carry  about 
them  our  charter,  containing  the  release  of  the  out- 
lawry before  pronounced  against  them,  that  they  may 
not  fail  to  be  protected  by  us,  when  they  shall  have 
occasion.  But  if  they  have  been  legally  and  deservedly 
outlawed,  such  release  will  not  avail  them  to  recover 
any  of  the  lands  or  chattels  which  were  theirs  before 
the  outlawry  pronounced  against  them,  or  to  demand 
any  inheritance  or  debts,  or  any  manner  of  remedy  for 
an  injury  which  they  shall  before  have  suffered. 

2.  Inlawry  ought  of  right  to  be  granted  in  these 
cases,  namely,  where  a  man  has  been  outlawed  before 
the  fourth  county  court,  or  without  suit  and  without 
command  of  the  Justices  Itinerant  after  their  eyre 
ended,  or  without  onr  writ,  or  where  there  was  not  a 
regular  succession  of  county  courts,  or  if  the  outlawry 
was  not  in  the  county  court,  or  not  in  the  presence  of 
the  coroner;  or  if  the  outlaw  at  the  time  of  pro- 
nouncing the  outlawry,  was  under  the  age  of  fourteen 


I  *21  I.]  OF  INLAWRY.  45 

years,^or  out  of  bis  right  mind,  or  deaf,  or  an  idiot,  or 
out  of  our  realm,  or  detained  in  prison  ;  or  if  the  cause 
of  outlawry  be  found  null,  as  if  the  man  who  was  sup- 
posed to  have  been  killed  be  still  alive,  or  if  the  outlawry 
was  pronounced  in  any  other  county  than  where  the 
felony  was  committed,  or  if  the  outlaw  was  then  in  our 
service  in  war  or  castle,  or  if  it  be  found  that  the 
occasion  of  the  outlawry  was  not  felony. 

3.  In  these  and  other  like  cases,  if  the  outlaws 
return  and  surrender  themselves  to  our  prison,  and 
acquit  themselves  of  the  principal  fact,  the  Justices 
shall  certify  us  thereof ;  and  we  will  immediately,  as 
of  right,  command  by  our  writs  the  sheriff  of  that 
county  and  the  counties  adjoining,  that  they  cause  the 
peace  of  such  outlaws  to  be  proclaimed  in  cities  and 
in  boroughs,  in  fairs  and  in  markets,  and  cause  it  to  be 
solemnly  declared  that  the  cause  of  the  outlawry  is 
found  to  be  false,  and  that  the  outlaws  be  restored  to 
their  lands  and  inheritances,  saving  to  us  their  chattels, 
if  they  shall  have  given  occasion  of  suspicion  by  flight. 

4.  We  will  that  those  who  by  malicious  contrivance 
sue  any  man  to  an  outlawry  in  any  other  county  than 
where  the  principal  fact  was  committed,  and  are  con- 
victed thereof,  shall  be  banished  our  realm  for  their 
malice. 

5.  And  although  a  person  be  rightfully  and  deserv- 
edly outlawed,  yet  it  may  appear  that  he  was  dead 
before  the  outlawry  pronounced  against  him ;  in  which 

1  See  note  to  chap.  xiii.  s.  1.  ante,  p.  48. 


46  BRITTON.   .  [I,  *22. 

case  liis  heirs  shall  enjoy  their  inheritance,  because  the 
ancestor  did  not  live  to  have  judgment  passed  upon  him. 

6.  If  it  be  found  that  an  outlawry  was  pronounced, 
before  the  third  county  court,  or  tliat  the  proceedings 
in  the  county  court  were  in  any  other  manner 
erroneous,  let  the  county  be  adjudged  in  our  mercy  ; 
and  if  it  be  found  that  the  outlawry  was  pronounced 
in  the  absence  of  the  coroner,  and  that  the  coroner 
was  in  fault,  let  the  coroner  be  punished  by  imprison- 
ment and  fine.  The  like  of  abjurations  made  in  his 
absence,  although  he  send  his  rolls  by  his  clerk  or 
other  person  not  properly  authorised. 

7.  As  to  lands  and  tenements  aliened  by  felons  at- 
tainted after  commission  of  their  felonies,  we  will, 
that  such  alienations  be  voidable  by  the  chief  lords  of 
the  fees  by  means  of  our  writs  of  escheat. 


CHAPTER  XY. 

Of  Rape. 

Rape  is  a  felony  committed  by  a  man  by  violence  on 
the  body  of  a  woman,  whether  she  be  a  virgin  or  not. 
Of  such  felonies  let  inquiry  be  made  ;  and  whoever  is 
attainted  thereof,  either  at  the  suit  of  the  woman  by 
appeal  of  felony,  or  at  our  suit,  shall  have  the  same 
judgment  as  for  the  death  of  a  man,  whether  the 
w^oman  have  consented  after  commission  of  the 
felony  or  not,  as  is  contained  in  our  Statutes  of  West- 
minster. 


I,  *22.]  OF  LAECEXIES.  47 


CHAPTEK  XYL 

Of  Larcenies. 

1.  Let  careful  inquiry  also  be  made  concerning- 
robbers,^  thieves,  and  such  like  offenders  ;  as  to  whom 
our  will  is,  that  if  those  who  rob,  or  steal  the  goods 
of  another,  amounting  to  twelvepence  or  more,*  be 

^  '  A  robbei"  is  he  who  by  force  in  the  day  or  night  despoils  an- 
other of  his  goods.  A  thief  is  he  who  carries  off  or  steals  an- 
other's goods  in  the  absence  of  the  owner,  or  in  his  presence  but 
without  his  knowledge.'     (Note  in  MS.  N.) 

2  In  the  time  of  Edward  I.  the  price  of  a  cow  varied  from  5s.  to 
12s.,  the  price  of  a  slieep  from  8d.  to  3s.  Wheat  varied  from  2s. 
to  16s.  the  quarter,  and  in  times  of  scarcity  rose  much  higher. 
See  Fleetwood's  Chronicou  Preciosum  ;  and  see  the  provisions  as 
to  the  assize  of  bread  below,  in  c.  xxxi.  Bracton  says  tliat  steal- 
ing a  pig  is  a  petty  theft  (Brae.  105) ;  and  we  shall  see  below,  in 
s.  7.  p.  61,  that  stealing  a  sheaf  of  corn  is  so  treated.  The  com- 
mentator in  MS.  N.  states  tliat  three  halfpence  (iii  mailles)  a  day 
was  a  poor  living  for  a  man,  and  gives  the  following  singular 
reason  for  12d.  being  fixed  as  the  limit  of  petty  larceny.  '  At 
three  halfpence  a  day,  12rZ.  would  be  eight  days'  wages  ;  and  as 
a  man  going  without  sustenance  for  eight  days  might  be  ex- 
pected to  die  on  the  ninth,  tlie  12d.  has  regax-d  to  the  destruction 
of  life,  for  which  offence  a  man  is  rightfully  put  to  death.'  The 
same  note  asserts,  that  '  in  France  and  many  other  countries 
beyond  sea,  thieves  are  put  to  death  for  less  than  in  England,  as 
for  the  value  of  sixpence  or  one  penny.'  By  the  Anglo-Saxon 
laws  no  mercv  was  to  be  shown  to  a  thief  of  above  the  value  of 


48  BRITTOK  [T,  *22  I. 

freshly  pursued  for  the  same  by  the  owners,  or  by 
those  out  of  whose  custody  the  things  were  stolen  or 
robbed,  and  the  goods  are  found  upon  them,  they 
shall  be  forthwith  taken  and  brought  to  trial  in  the 
court  of  the  lord  of  the  fee,  if  he  has  the  franchise  of 
infangthief,  or  in  our  court  in  the  hundred,  or  county, 
or  elsewhere  ;  and  the  coroner  shall  be  fetched  forth- 
with, and  in  his  presence  the  sakeber^  shall  be  heard 
in  his  own  person,  and  if  he  claims  the  goods  as  stolen 
or  robbed  and  there  are  lawful  people  as  witnesses  to 
prove  it,  such  robbers  shall  be  immediately  adjudged 
to  death. 

8d.  (Leg.  Atheist,  i.  1.  Leg.  Hen.  I.  lix.  20.)  But  by  another 
law  of  Athelstan  the  sum  is  fixed  at  12d.  (Leg.  Ath.  v.  1.) 
Spelman  points  out  the  increased  severity  of  the  law  arising  from 
the  change  in  tlie  value  of  money.  In  quantam  asperitatem  ex 
rerum  temporumque  vicissitudine  lex  antiqua  abripitur.  Quod 
enim  olim  12d.  venit,  hodie  seepe  20s.,  imo  40,  vel  pluris  est. 
Nee  vita  hominis  interea  carior  sed  abjectior.  (Spelra.  Gloss,  s. 
V.  Laricinium.) 

^ '  Sakbere  is  he  from  whom  the  chattels  are  stolen,  and  is  so 
called  from  sak  (English)  which  is  enchesun  in  French,  and  bere 
which  is  porteur  in  French  :  as  being  he  who  bears  tlie  cause  to 
go  to  tlie  deliverance  of  the  thief.'  (Note  in  MS.  N.)  Compare 
Spelman,  Gloss,  s.  v.  Sacaburth,  Sacaber ;  Thorpe's  Glossary  to 
ancient  English  laws,  s.  v.  Sagemannus.  The  former  part  of  the 
word  appears  to  be  the  A.  S.  Sacu,  Germ  Sache,  a  cause  or  mat- 
ter of  contention,  whence  the  legal  term  sak  for  jurisdiction. 
The  latter  part  of  the  word  is  variously  derived  from  the  A.  S. 
beran.  to  carry,  the  A.  S.  borh,  a  pledge  or  security,  and  the  old 
Teutonic  Bar  (A.  S.  war)  a  man,  whence  the  French  and  Eng- 
lish Baron. 


1,  *23.]  OF  LARCENIES.  40 

2.  If  they  are  not  taken  freshly  ^  upon  the  fact, 
although  the  goods  are  found  upon  them,  they  shall 
be  j)erinitted  to  answer,  and  then  they  may  demand  in 
what  manner  the  plaintiff  intends  to  proceed  against 
them,  and  if  he  answer,  '  by  words  of  felon}','  then 
the  thief  shall  be  either  sent  to  our  gaol  or  let  to  main- 
prise until  the  next  county  court  or  until  the  next 
gaol  delivery,  and  there  the  plaintiff  shall  make  his 
suit  by  words  of  appeal,  as  will  be  explained  below 
in  treating  of  appeals.  And  if  the  fact  was  com- 
mitted out  of  the  lord's  jurisdiction,  or  if  the  lord 
has  not  suitors  sufficient  to  take  the  inquest,  then 
such  felons  shall  be  forthwith  sent  to  our  county 
gaol.  The  sakeber,  if  he  pleases,  may  bring  an  ac- 
tion for  his  goods,  as  lost ;  and  then  he  shall  not  sue 
judgment  of  felony,  but  of  trespass  only ;  but  when 
the  sakeber  has  begun  his  suit  in  the  form  of  felony,  if 
he  does  not  prosecute  it,  we  may  ourselves  proceed  to 
conviction  of  the  felony 

3.  If  the  accused  has  any  warrant  within  our  realm, 
then  he  may  defend  himself  by  voucher ;  and  if  he 
vouches  to  warrant  any  person  who  gave  him  the 
thing,  or  sold  it,  or  otherwise  made  it  over  to  him,  let 
a  day  be  given  him  to  produce  his  warrant,  if  he  be 
not  then  present  ;  and  if  he  cannot  produce  him,  let 
him  be  compelled  to  appear  by  the  aid  of  our 
Court  ;  at  which  day  if  he  fails  to  produce  his  warrant 
whom   he  has  vouched,  where  he  vouches  him  at  his 

1  The  commentator  in  MS.  N.  explains  the  word  freschement  as 
denoting  that  the  sakeber  must  make  his  suit  the  same  day. 
4 


50  BRITTON.  [I,  *23  h. 

own  peril  and  without  aid  of  our  Court,  he  shall  be- 
obliged  to  give  some  other  answer,  or  be  put  to  his 
penance,  and  the  goods  shall  be  delivered  to  the  person 
who  claims  them.  And  when  a  person  is  vouched  to 
warranty  by  aid  of  our  Court,  the  sheriff,  in  whose 
bailiwick  the  warrant  is  expected  to  be  found,  shall  be 
commanded  to  have  his  body  at  such  a  place  on 
a  certain  day,  either  to  undertake  the  warranty  or  to 
refuse  it.  If  the  sheriff  returns  that  no  such  person  is 
known  in  his  bailiwick,  the  voucher  shall  be  driven  to 
his  answer  in  chief,  or  to  his  penance  if  he  refuse  to 
answer  ;  and  if  the  sheriff  returns  that  the  vouchee  is 
not  found,  then  let  our  Avrit  issue  to  the  same  sheriff, 
to  cause  him  to  be  demanded  from  county  court  to 
county  court  until  he  either  appear  or  be  outlawed. 

4.  If  the  vouchee  comes  and  enters  into  the  warrant 
to  defend  the  vouchor  in  the  possession  of  the  thing, 
let  the  plea  against  the  principal  be  suspended,  and  one 
commenced  against  the  warrant.  And  if  the  warrant 
makes  good  his  case,  then  let  both  the  vouchor  and  his 
warrant  be  acquitted,  and  the  plaintiff  be  adjudged  to 
prison  for  the  reason  which  shall  be  given  in  the  chapter 
of  appeals.  If  judgment  be  given  against  the  warrant, 
then  the  thing  challenged  shall  be  adjudged  to  the 
plaintiff,  and  the  principal  shall  be  indicted  of  the  felony 
at  our  suit,  upon  presumption  of  his  being  an  accomplice 
of  the  warrant,  who  is  attainted  of  the  felony. 

5.  If  the  principal  has  no  one  to  vouch,  he  may  say 
that  he  bought  the  thing  challenged  in  such  a  year  and 
on  such  a  day,  at  such  a  fair  or  at  such  a  market,  in 


I,  *24.]  OF  LARCENIES.  51 

the  presence  of  a  great  number  of  people,  and  paid  a 
toll  to  the  bailiffs  for  it.  And  if  he  vouches  the  testi- 
mony of  the  said  bailiffs  and  others  then  present,  and 
evidence  is  given  accordingly,  or  if  he  puts  himself  on 
the  country  and  is  acquitted  of  the  felony,  and  yet  the 
prosecutor  has  proved  that  the  thing  challenged  be- 
longed to  him,  and  that  it  was  stolen  from  him  or  out 
of  his  custody,  in  such  case  he  must  be  answerable  to 
the  owner,  and  make  him  satisfaction,  and  the  judgment 
shall  be,  that  the  claimant  recover  the  thing  demanded, 
and  that  the  person  challenged  go  quit,  and  lose  what 
what  he  gave  for  the  thing ;  and  if  he  can  produce  no 
such  witnesses,  let  him  acquit  himself  by  the  country. 
6.  If  any  one  be  indicted  by  presentment  of  robbery, 
or  of  larceny,  or  of  cutting  of  purses,  or  of  receiving  of 
felons,  or  of  enchantment,  as  those  who  send  people  to 
sleep,^  or  of  cheating  by  selling  bad  things  for  good,  as 
pewter  for  silver,  or  latten  for  gold,  or  of  other  petty 
offences  of  the  like  nature,  our  will  is  that  such  be 
apprehended  ;  or,  if  they  cannot  be  found,  they  shall 
be  demanded,  and  their  lands  and  chattels  be  seized 
into  our  hands ;  and  if,  when  they  are  tried,  they  can- 
not acquit  themselves  of  the  felony,  whether  at  our 
suit  or  another's,  let  them  be  condemned  to  be  hanged, 

1  This  seems  to  give  some  support  to  the  conjecture,  that  tlie 
experiments  of  mesmerism  and  animal  magnetism,  which  have 
created  so  much  interest  in  our  times,  were  not  unknown  in  the 
13th  centur}\  Endormeiirs  de  genz  are  mentioned  as  offenders 
in  tlie  Consuet.  S.  Genov.  f.  34.  MS.  cited  in  Ducange,  Gloss,  s.  v. 
Dormitahilis.  It  is  possible  however  that  the  effect  may  have 
been  produced  by  drugs. 


52  BKITTOK  [I,  *24  h. 

or  to  lose  an  ear,  or  to  the  pillory,  according  to  the 
greatness  of  their  crime,  and  according  as  they  have 
been  habitual  offenders  or  not. 

7.  In  small  thefts,  as  of  sheaves  of  corn  in  harvest,  or 
of  pigeons  or  poultry,  let  the  judgment  be  this,  that  if 
the  thieves  are  not  found  to  be  otlierwise  of  bad  char- 
acter, and  the  thing  stolen  is  under  the  value  of  twelve 
pence,  they  shall  be  put  in  the  pillory  for  an  hour  in  the 
day,  and  be  not  admissible  to  make  oath  on  any  jury 
or  inquest,  or  as  witnesses ;  and  the  like  as  to  all  those 
Avho  have  been  sentenced  to  undergo  such  punishments 
or  the  punishment  of  the  tumbrel,  or  to  lose  a  limb. 
And  if  these  petty  thieves  are  persons  of  bad  character, 
or  if  they  have  offended  out  of  mere  wickedness,  and 
not  through  want,  then  their  sentence  shall  be  to  lose 
an  ear,  and  be  rendered  infamous  for  ever,  as  above 
mentioned;  and  if  they  be  found  guilty  of  a  second 
offence,  then  it  shall  be  in  the  discretion  of  the  Justices, 
•either  to  judge  them  to  death  or  order  their  other  ear 
to  be  cut  off ;  and  if  they  are  convicted  a  third  time, 
whether  it  be  for  a  great  or  a  small  crime,  and  whether 
at  our  suit  or  another's,  let  them  receive  sentence  of 
•death. 

8.  As  to  cutpurses,  if  they  have  not  been  guilty  of 
any  other  offence,  let  them  be  sentenced  to  the  pillory 
for  the  cutting  of  the  purse  ;  and  if  there  be  anything 
else  stolen  by  the  prisoner  under  twelve  pence  or  of 
that  value,  he  shall  lose  one  of  his  ears,  and  if  the  thing 
exceed  the  value  of  twelve  pence,  then  judgment  of 
death  shall  be  passed  upon  him. 


I,  *25.]  OF  ABJURATIONS.  53 


CHAPTER  XVII. 
Of  Abjurations. 

1.  Concerning  those  who  fly  to  churches  for  their 
crimes,  our  will  is,  that  the  coroner  of  the  place  go  to 
them  to  inquire  wherefore  they  have  taken  sanctuary, 
and  hear  their  confessions  ;  and  if  they  will  neither 
confess  felony  nor  come  out  of  church  to  be  amenable 
to  justice,  they  shall  forfeit  their  chattels  on  account 
of  their  flight,  and  the  coroner  shall  immediately  cause 
their  lands  and  their  chattels  to  be  seized  into  our 
hand,  and  their  chattels  to  be  valued  and  delivered  to 
the  township.  The  admission  which  they  shall  make 
that  they  are  not  willing  to  appear  to  answer  to  our 
peace,  shall  be  entered  in  the  roll,  to  the  intent  that 
they  may  never  be  under  our  peace,  until  they  are  ac- 
quitted in  our  Court  of  the  crimes  wherewith  they  shall 
be  charged  ;  the  coroner  however  is  not  obliged  to  go, 
unless  he  pleases,  notwithstanding  the  fugitive  is  desir- 
ous of  confessing  felony  and  praying  the  favour  of 
abjuration. 

2.  If  the  fugitives  abide  in  sanctuary  above  forty 
days  from  the  time  of  the  coroner's  first  going  to  them,^ 
the  whole  county  shall  be  charged  with  their  custody, 

1  Other  authorities  seem  rather  to  show  that  the  forty  days 
were  to  be  reckoned  from  the  arrival  in  the  church.  See  Brae. 
136  ;  Fie.  45,  and  compare  Stat.  32  Hen.  VIII.  c.  12. 


54  BRITTON.  [I,  *25  h. 

and  they  accounted  as  felons  or  as  persons  out  of  our 
peace.  And  if  they  confess  felony  and  pray  to  abjure 
our  realm,  and  beg  the  protection  of  the  church  until 
they  have  provided  for  and  settled  their  departure,  then 
our  pleasure  is,  that  they  have  such  protection  for  forty 
days  from  the  day  of  the  coroner's  coming  to  them  ; 
and  forthwith  after  the  enrollment  of  their  confession, 
let  them  be  given  in  charge  to  the  constables  of  the 
townships,  that  they  may  not  in  the  meantime  be 
allowed  to  escape  out  of  sanctuary. 

3.  Let  the  abjuration  be  made  at  the  gate  or  fence  ^ 
of  the  churchyard,  in  this  manner.  Hear  this,  you 
coroner  and  other  good  people,  that  I  for  such  an  act 
which  I  feloniously  did,  or  assented  to  the  doing  there- 
of, will  depart  from  the  realm  of  England,  (or  the 
land  of  Ireland,)  and  will  never  return  thereto  unless 
by  leave  of  the  king  of  England  or  his  heirs,  so  help  me 
God  and  the  Saints. 

4.  Immediately  after  they  shall  choose  for  them- 
selves^some  seaport,  or  passage  into  Scotland  out  of  the 
realm,  as  far  as  which  port  or  passage  we  admit  them 
to  our  protection,  provided  they  are  not  guilty  of 
fraud.     And  then  let  them  be  forbidden  on  peril  of  life 

1  Qu.  Steps.  See  Ducange  Gloss,  s.  v.  Scalarium  :  Roquefort 
Gloss.  8.  V.  Eschallier. 

2  There  is  a  note  in  the  Year  Book  of  30  Ed.  I.  tliat  he  who 
wishes  to  abjure  the  realm  shall  take  the  port  assigned  him  by 
the  Coroner  and  no  other.  (Year  Book  30  and  31  Ed.  I.  App.  i. 
p.  509.)  See  also  the  Statutes  of  Wales  (12  Ed.  I.)  c.  5.  Brao- 
ton  and  Fleta  agree  with  the  text. 


T,  *26.]  OF  ABJURA.TIONS.  55 

and  limb  to  turn  aside  anywhere  out  of  the  high  road, 
until  they  have  left  the  kingdom,  or  country,  at  that 
port  or  passage  which  they  have  chosen,  and  no  other, 
with  all  possible  dispatch  and  Avithout  fraud.  Let 
them  then  go  with  a  wooden  cross  in  their  hands,  bare- 
footed, ungirded,  and  bareheaded,  in  their  coat  only. 
And  we  forbid  any  one  under  peril  of  life  and  limb  to 
kill  them  so  long  as  they  are  on  their  road  pursuing 
their  journey  ;  nor  shall  they,  or  any  other  fugitives, 
be  killed,  if  they  can   be  taken  in  any  other  manner. 

5.  If  such  fugitives  abide  in  sanctuary  forty  days, 
after  the  coroner's  coming  to  them,  they  shall  be  de- 
barred thereafter  from  the  favour  of  abjuration,  and 
deemed  as  felons  convict,  so  as  to  have  no  right  of  ac- 
cusing or  appealing  any  others  ;  and  we  forbid  all 
laymen  under  forfeiture  of  life  and  limb,  and  clerks 
under  pain  of  banishment  from  our  kingdom  during 
our  pleasure,  to  give  them  any  meat  or  drink  after  the 
said  forty  days,  or  to  have  any  manner  of  communica- 
tion with  them. 

6.  We  will  and  grant,  that  whenev^er  any  one  has 
abjured  our  realm  through  fear,  and  it  can  be  after- 
wards proved  that  he  was  not  guilty  of  the  felony 
Avhich  he  confessed,  he  may  safely  return,  saving  to 
every  one  his  suit ;  and  in  such  cases  the  heirs  of  the 
fugitives  shall  not  be  disinherited,  but  their  chattels 
shall  notwithstanding  be  forfeited  by  reason  of  their 
flight. 

7.  And  our  will  is,  that  all  abjurations  taken  by  any 
one,  who  shall  have  meddled  with  the  office  of  coroner 


56  BKITTON.  [I,  *2G  h. 

without  being  authorized  thereto  by  us  or  our  prede- 
cessors, shall  be  held  void  and  may  be  disavowed  and 
annulled  ;  the  like,  if  the  coroner,  though  authorized, 
he  did  not  attend  in  his  own  person. 

8.  In  abjurations  made  on  account  of  our  game,  or 
other  trespasses,  let  none  be  disinherited  of  his  lands 
or  tenements,  but  forfeit  his  chattels  only. 


CHAPTER   XVIII. 

Of  Treasure-trove,  Wrecks,  Waifs,  and  Estrays. 

1.  Concerning  treasures  found  concealed  in  the  earth, 
and  concerning  wrecks  and  waifs  belonging  to  us,  and 
sturgeons  and  whales,  and  other  things  found,  which 
of  right  belong  to  and  are  detained  from  us,  let  careful 
inquiry  be  made,  and  of  the  names  of  those  who  found 
them,  and  to  whose  hands  they  have  come,  and  to  what 
amount.  For  treasure  hid  in  the  earth  and  found  shall 
belong  to  us,  but  if  found  in  the  sea,  it  shall  belong  to 
the  finder ;  and  any  person  who  shall  find  such  treasure 
in  the  earth  shall  forthwith  inform  the  coroner  of  the 
district  or  the  bailiffs  thereof ;  and  the  coroner  shall 
go  without  delay  and  inquire,  whether  any  of  it  has 
been  carried  off,  and  by  whom,  and  save  all  that  can 
be  found  for  our  use  ;  and  those  who  carried  it  off  shall 
be  held  to  mainprise  until  the  eyre  of  the  Justices  ; 
and  if  our  Justices  can  convict  the  eloiners  of  malice, 
they  shall  be  punished  by  imprisonment  and  fine,  buit 
if  malice  be  not  found,  they  shall  be  punished  by  amerce- 
ment only. 


I,  *27.]  OF  TREASUKE-TKOVE.  67 

2.  As  to  things  lost  and  found  above  ground,  if  the 
owner  demand  them  within  the  year  and  day,  and  can 
prove  them  to  be  his  property,  they  shall  be  delivered 
to  him  ;  so  likewise  to  him  who  lost  the  things,  pro- 
vided he  can  prove  the  loss ;  and  if  the  things  are  not 
claimed  within  the  year  and  day,  and  the  finder  has 
caused  them  to  be  cried  and  published  in  the  neighbour- 
ing markets  and  churches,  then  the  finder  may  keep 
them. 

3.  Waifs  or  estrays,  not  challenged  within  the  year 
and  day,  shall  belong  to  the  lord  of  the  franchise,  if  he 
be  rightfully  seised  of  such  franchise  ;  but  if  the  lord 
did  not  cause  the  beast  so  found  to  be  publicly  cried  in 
manner  aforesaid,  then  no  time  shall  run  against  the 
owner  of  the  thing  or  beast,  to  bar  him  from  replevy- 
ing it  whenever  he  pleases  ;  and  if  the  lord  avow  it  to 
be  his  own,  the  person  demanding  it  may  either  bring 
an  action  to  recover  his  beast  as  lost,  in  form  of  trespass, 
or  an  appeal  of  larceny,  by  words  of  felony  ;  and  if 
the  lord  by  either  proceeding  be  found  guilty  of  a  tor- 
tious detaining,  he  shall  lose  his  franchise  of  estray  for 
ever  after. 

4.  With  regard  to  wreck  of  sea  found,  the  ordinance 
of  our  statutes  shall  be  observed.  Sturgeons  taken 
within  our  dominions  shall  belong  to  us,  saving  to  the 
persons  who  took  them  their  reasonable  costs  and  ex- 
penses ;  and  of  whales  caught  within  our  jurisdiction 
the  head  shall  belong  to  us  and  the  tail  to  our  consort, 
according  to  ancient  usage. 


58  BRITTOK  [I,  *2r5. 


CHAPTER  XIX. 

Of  the  King's  Bights. 

1.  "With  respect  to  our  seigniories,  let  inquiry  be 
made  of  cathedral,  parochial,  and  conventual  churches, 
and  of  religious  houses  and  hospitals  in  the  county, 
what  are  of  our  advowson  ;  and  what  ought  to.be  so,  but 
are  not ;  and  who  has  deprived  us  of  them,  and  how ; 
also  what  demesnes  in  the  same  county  we  hold  in  our 
hands,  and  what  demesnes  we  and  others  hold  of  the 
ancient  demesnes  of  our  crown,  and  what  by  escheat 
and  by  purchase,  and  who  hold  such  lands  besides  our- 
selves, and  what  the  lands  are  severally  worth  accord- 
ing to  their  true  value  ;  and  of  demesnes  which  ought 
to  be  ours  and  are  not,  how  they  have  been  aliened,  and 
by  whom,  and  who  hold  them.  So  likewise  of  seign- 
iories and  advowsons  of  churches. 

2.  Also  of  hundreds,  which  ought  to  be  held  of  us  in 
chief  and  are  not,  inquiry  must  be  made  how  they  have 
been  aliened,  and  by  whom,  and  who  now  hold  them, 
and  from  what  time,  and  what  is  their  true  value  by 
the  year ;  likewise  of  the  true  value  of  the  county,  and 
how  much  rent  the  sheriff  pays  us  a  year,  and  how 
many  of  the  hundreds  are  in  our  hands,  and  what  each 
-hundred  is  worth,  and  how  much  the  bailiffs  annually 
pay  to  us  or  any  other  for  them. 

3.  Inquiry  must  also  be  made  of  customs  and  serv- 


I,  *28.]        OF  THE  KING'S  RIGHTS.  50 

ices  due  to  us,  whether  they  have  been  withheld,  and 
by  whom,  and  how  long.  The  like  with  respect  to 
suits  due  at  our  county  court,  our  hundreds,  and  our 
manors,  and  at  the  tourns  of  our  sheriff,  and  our  views 
of  frankpledge,  and  at  our  mills,  whether  they  have 
been  fully  performed  ;  and  if  not,  how  they  have  been 
withheld,  and  from  what  time,  and  by  whom ;  and  so 
of  all  services  which  of  right  are  due  to  us. 

4.  Inquiry  shall  also  be  made  concerning  escheats, 
which  ought  to  fall  to  us  by  the  felony  of  felons,  or  by 
the  death  of  our  tenants  without  heirs,  or  by  any  kind 
of  reversion ;  and  concerning  the  lands  of  Normans, 
and  of  felons  who  held  of  us  in  chief,  which  have  been 
aliened  after  the  commission  of  their  felonies,  and 
ought  to  be  our  escheats,  who  hold  them,  and  from 
what  time,  and  how  much  a  year  they  are  worth  with 
their  whole  profits  at  the  true  value ;  the  like  as  to 
lands  and  tenements  held  of  other  lords,  and  aliened 
by  felons  after  the  commission  of  their  felony,  without 
compounding  with  us  for  the  year  and  waste. 

5.  Also  concerning  earldoms,  baronies,  knights'  fees, 
grand  and  petty  serjeanties,  dismembered  without 
our  leave,  inquiry  must  be  made  how  they  are  held,  and 
who  hold  them,  and  of  whom,  whether  of  us  in  chief, 
or  by  mesne.  Also  whether  there  be  anything  in 
arrear  to  us  for  any  service  or  profit  which  of  right 
belongs  to  us ;  and  whether  we  have  fully  had  the 

^vardships,  marriages,  homages,  reliefs,  and  heriots, 
wherever  we  ought  to  have  them  of  right,  and  if  not, 
by  whom  they  have  been  withheld  from  us,  and  how 


60  BRITTON.  [I,  *28  h. 

long,  and  what  is  their  yearly  value;  so  of  all  children, 
male  and  female,  and  widows,  whose  marriages  be- 
long to  us,  and  who  have  been  married  without  our 
leave,  how  often  and  to  vrhom  they  have  been  married, 
and  how  much  their  lands  are  worth  by  the  year. 

6.  Let  inquiry  also  be  made  of  all  kinds  of  purpres- 
tures  made  upon  us  of  lands  or  franchises ;  and  those 
who  shall  be  presented  as  deforceors  and  purprestors 
by  fresh  force  since  proclamation  of  the  eyre,  shall  be 
summoned  to  appear  at  a  certain  day  to  answer  for  the 
wrong  they  have  done,  and  the  process  against  them 
shall  be  as  in  a  plea  of  land  by  our  writs  of  great  and 
little  Cape. 

7.  The  deforceors  also  in  the  other  articles  aforesaid 
shall  be  summoned.  And  when  any  of  them  appears 
in  court,  and  pleads  that  he  found  his  ancestor  seised 
and  can  prove  it,  the  demand  made  without  our  writ 
shall  be  stayed,  and  those  who  are  appointed  to  prose- 
cute our  right,  shall  immediately  apply  for  a  writ  of 
right  which  is  called  a  Prcecipe  quod  reddat  nobis 
against  the  deforceor  ;  and  if  the  writ  be  obtained  for 
anything  appendant  to  our  crown,  such  as  our  ancient 
demesnes,  let  no  time  be  limited  in  the  count ;  and  if 
the  tenants  desire  to  put  themselves  upon  an  inquest  in 
form  of  the  great  assize,  let  them  not  be  admitted 
thereto  without  the  consent  of  us  and  our  council,  un- 
less our  attoreys  in  any  such  case  are  of  opinion  that 
a  verdict  will  pass  in  our  favour  ;  for  we  are  bound  to 
recover  such  rights  of  our  crown  as  have  been  wrong- 
fully aliened  ;  in  which  rights  no  man  ought  to  aid  him- 


I  *29.]         OF  THE  KING'S  RIGHTS.  61 

self  by  exception  of  long  tenure,  though  he  may  by 
vouching  to  warranty,  and  by  reasonable  exceptions, 
as  shall  be  hereafter  set  forth  in  treating  of  exceptions. 
And  if  the  writ  is  obtained  on  our  behalf  concerning 
escheats  or  purchased  lands  which  have  been  aliened, 
or  other  things  which  are  not  appurtenant  to  our 
crown,  in  such  case  the  count  ought  not  to  go  farther 
back  than  in  a  writ  of  right,  and  prescription  shall  run 
against  us  as  well  as  against  others. 

8.  Escheats  deforced  from  us,  shall  be  demanded  by 
writ  of  escheat.  And  as  to  suits  withheld  from  us,  the 
proceeding  shall  be  by  distress,  for  this  prerogative  we 
claim  on  account  of  the  great  delays  which  occur  in 
writs  of  customs  and  services.  With  respect  to  our 
fees  dismembered  and  held  of  us  by  mesne  since  the 
last  eyre,  our  will  is,  that  they  be  taken  into  our 
hands,  and  the  sheriff  be  answerable  to  us  for  the 
issues  of  them,  and  they  shall  not  be  restored  without 
our  leave.  And  as  to  wardships  and  marriages  detained 
from  us,  we  will  that  proceedings  shall  be  taken  im- 
mediately without  writ,  and  the  penalty  provided  by 
our  statutes  shall  be  enforced  against  the  deforceors. 

9.  And  we  will  have  it  known  to  all,  that  if  any 
man  dies  who  held  of  us  by  knights'  fee,  or  by  grand 
serjeanty, — whether  he  held  of  the  ancient  demesnes 
of  the  crown,  or  lands  escheated,  or  purchased, — and 
his  inheritance  after  his  death  descends  among  several 
daughters  as  one  heir,  we  will  have  the  marriage  of  all 
the  daughters  as  often  as  they  shall  be  to  marry  ;  and 
the  like  with  regard  to  all  widows,  whose  husbands 


62  BEITTON.  [I,  *30. 

held  of  us  in  chief  ;and  if  it  be  presented  that  any  one, 
whether  mule  or  female,  whose  marriage  belongs  to  us, 
has  been  married  without  our  leave,  let  all  their  lands 
and  the  lands  of  their  husbands  be  immediately  seized 
into  our  hands,  and  the  sheriff  shall  answer  to  us  for 
the  issues,  and  they  shall  not  be  restoi'ed  to  them  with- 
out our  leave. 

10.  As  to  purprestures  our  will  is,  that  such  as  are 
nusances  shall  be  removed  at  the  costs  of  those  Avho 
have  made  them,  and  such  as  may  be  permitted  to  re- 
main shall  be  taken  into  our  hand,  and  the  yearly 
value  thereof  enrolled  ;  and  according  to  the  discretion 
of  the  treasurers  and  barons  of  our  exchequers,  they 
shall  be  let  at  fee  farm  to  those  who  will  give  most  for 
them. 


CHAPTER  XX. 

Of  Franchises. 

1.  Let  inquiry  also  be  made,  what  persons  in  the 
county  claim  to  have  return  of  our  writs,  or  custody  of 
our  gaol,  or  that  the  Justices  in  eyre  shall  come  into 
their  franchises,  or  to  have  their  own  coroners,  or 
chattels  of  felons,  or  view  of  frankpledge,  or  the 
franchise  of  infangthief  and  outfangthief  and  gallows, 
or  fairs,  or  markets,  or  the  execution  of  pillory  or 
tumbrel,  or  to  have  wreck  of  sea,  or  to  have  pleas  de 
vetito  namio  pleaded  in  their  courts,  or  to  have  lestage, 
or  amercements  of  their  tenants,  or  traverse,  or  toll, 


I  *30  h.]  OF  FRANCHISES.  63 

or  estray,  or  murage,  or  pontage,  or  cheminage,^  or 
warren  in  liis  deraense  lands  or  in  other  lands,  or  to  be 
quit  of  doing  suit  at  our  county  court,  or  at  sheriffs' 
tourns,  or  at  our  views  of  frankpledge,  or  to  be  quit  of 
lestage,  murage,  or  pontage,  or  who  claim  any  kind  of 
liberty  more  than  other  people. 

2.  We  will  therefore  that  the  presentments  upon 
such  articles  shall  be  pleaded  in  this  manner.  First, 
the  claimants  shall  be  ordered  to  appear  by  reasonable 
summons,  as  shall  be  mentioned  in  treating  of  sum- 
monses ;  and  then  if  the  summons  be  attested  and  they 
make  default,  the  franchise  shall  be  taken  into  our  hand, 
the  sheriff  answering  to  us  for  the  issues,  and  so  re- 
main in  our  hand  until  the  claimants  appear  and  answer. 
And  if  those  who  make  default  have  of  their  own 
wrong  usurped  such  franchises  upon  us,  they  shall  be 
distrained  in  such  manner  as  shall  be  mentioned  in  the 
chapter  concerning  attachments  in  trespass  and  debt ; 
and  when  they  appear  in  court,  if  they  cannot  clear 
themselves  of  the  personal  wrongs  committed  against 
us  to  our  disherison,  let  it  then  be  awarded,  that  we  re- 
cover the  franchise,  and  that  they  be  disinherited  of 
the  value  thereof,  or  be  in  our  mercy. 

1  Murage  was  a  tax  for  the  repair  of  town-walls  ;  pontage,  a 
toll  taken  on  bridges,  or  for  their  repair  ;  cheminage,  a  toll  ex- 
acted for  the  use  of  a  way  through  a  forest ;  traverse,  a  toll  paid 
for  passing  through  the  limits  of  a  town  or  lordship ;  lestage  or 
lastage,  an  impost  in  fairs  and  markets,  calculated  by  the  last,  a 
measure  by  which  several  kinds  of  solid  goods  were  sold.  See- 
Ducange,  Glossary;  Comyns's  Digest,  s.  t;.  Toll. 


U  BRITTON.  [I,  *31. 

3.  But  if  it  be  found  by  their  answer,  that  their 
ancestors  died  seised,  then  they  shall  not  be  obliged 
to  answer  without  our  writs,  unless  they  choose  to  do 
so ;  but  our  attorneys  shall  immediately  cause  our  writs 
of  Quo  warranto  to  be  issued  against  them.  By  such 
writs  they  shall  first  be  summoned  to  come  and  answer 
at  a  day  certain,  at  which  if  they  make  default,  the 
franchises  shall  be  taken  into  our  hand,  as  aforesaid, 
and  so  remain  without  any  other  summons,  until  we 
shall  otherwise  direct;  so  that  they  shall  never  be  per- 
mitted to  replevy  such  franchise  if  they  do  not  answer 
forthwith.  If  in  their  answer  they  allege  long  posses- 
sion, or  vouch  others  to  warrant  who  allege  long  tenure, 
in  such  case  judgment  shall  be  stayed  for  the  deter- 
mination of  us  and  our  council,  whether  such  answer 
be  a  continuance  of  the  wrong  done  to  our  crown,  or  a 
title  of  right  in  the  tenants. 


CHAPTER  XXL 

Of  various   wrongs. 

1.  In  the  next  place  let  it  be  inquired  what  persons 
have  built  castles  or  fortlets  or  houses  of  stone,  crenel- 
lated and  defensible  ;  and  let  those  who  have  so  done 
be  summoned  to  come  and  answer,  and  show  if  they 
have  any  license  from  us  or  our  ancestors  for  erecting 
or  repairing  such  fortlets,  and  if  the}'^  cannot  produce 
iiny  such  license,  let  them  be  taken  into  our  hand,  either 


I,  *31  b.]        OF  VAKIOITS  WRONTrS.  65 

to  be  held  by  us  or  pulled  down,  according  to  our 
pleasure. 

2.  Afterwards,  let  inquiry  be  made  of  bridges  and 
causeways,  and  of  common  highways  destroyed,  or 
otherwise  in  bad  repair,  who  is  bound  to  repair  and 
amend  them  ;  and  such  as  are  named  in  the  presentment 
shall  be  attached  to  appear  by  personal  distress.  A.nd 
if  it  be  found  on  their  appearance  in  court,  that  any 
of  them  hold  teneinents  of  us,  for  the  repairing  of  such 
ways,  let  the  said  tenements  be  taken  into  our  hand,  and 
the  sheriff  be  charged  to  answer  us  for  the  issues,  and 
to  cause  the  repairs  to  be  done  ;  and  where  there  is  no 
tenement  held  of  us  by  the  performing  of  such  services, 
our  will  is,  that  the  persons  who  are  bound  to  repair 
the  ways,  and  have  not  done  what  they  ought,  shall  be 
in  our  mercy,  and  the  sheriff  shall  be  commanded  that 
he  cause  them  to  be  distrained  by  their  beasts  and  chat- 
tels, and  detain  the  distresses  until  they  have  amended 
the  defects,  and  this  as  often  as  it  shall  be  needful. 

3.  Let  inquiry  also  be  made  concerning  those,  who 
since  the  first  day  of  the  last  eyre  have  erected  any 
gallows,  pillory,  or  tumbrel  ;  and  such  persons  as  are 
indicted  thereof  shall  be  compelled  by  distress  to  come 
and  answer  ;  and  if  on  their  appearing,  they  can  neither 
show  sufficient  warrant  for  what  they  have  done,  nor 
deny  that  they  have  done  it,  let  them  be  awarded  to  be 
in  our  mercy,  and  let  the  instruments  be  pulled  down. 
Let  inquiry  also  be  made  concerning  those,  who,  not 
being  our  Justices  or  our  coroners,  have  held  pleas  of 
felonj'  and  of  important  trespasses  committed  against 


C6  BRITTON.  [I,  *32, 

our  peace ;  and  concerning  those  who  have  lield  pleas 
de  vetito  namio,  or  of  debt  exceeding  forty  shillings, 
or  of  trespass  exceeding  the  same  sura  without  our 
writs.  And  also  concerning  those  who  have  the  fran- 
chises of  view  of  frankpledge  and  of  infangthief,  and 
have  not  the  instruments  of  punishment  which  belong 
to  such  franchises,  whereby  such  franchises  have  be- 
come disused. 

4.  Let  inquiry  also  be  made  of  those  who  keep  their 
lands  in  warrens,  other  than  those  lands  which  they 
held  in  their  demesne  as  of  fee  on  the  day  of  granting 
their  charter  of  warren :  or  who  have  used  any  other 
franchise  otherwise  or  more  largely  in  any  point  than 
is  warranted  by  the  tenor  of  their  charter  whereb}'^ 
they  ought  to  forfeit  the  whole  for  the  abuse.  Also 
of  those  who  take  fines  for  leave  of  beau  pleader;  ^  and 
of  those  who  hold  pleas  of  persons  not  within  their 
jurisdiction,  and  of  all  such  as  have  aggrieved  the 
people  by  distresses  contrary  to  the  ordinance  of  our 
statutes.  Those  who  are  accused  thereof,  shall  be  dis- 
trained to  appear  by  the  sheriff ;  and  if  on  their  ap- 
pearance in  court,  they  can  neither  deny  the  fact,  nor 
justify  what  they  have  done,  their  court  and  their 
warrens  shall  be  taken  into  our  hand  without  replevin. 

1  It  was  forbidden  by  Stat.  Marl.  c.  11,  (confirmed  by  Stat. 
West.  1.  c.  8)  that  arbitary  fines  should  be  imposed  in  Justices' 
Eyre,  County  Court,  or  Court  Baron,  pro  pulchre  placitando, 
that  is,  for  license  to  amend  a  defective  plea.  But  when  sucli 
fines  had  become  settled  by  custom  they  were  allowed.  See 
C-oke  Inst.  pt.  ii.  p.  132. 


1,  *32  5.]        OF  VARIOUS  WRONGS.  67 

5.  Inquiry  sliall  also  be  made  concerning  those  who 
have  detained  felons  or  provers  above  a  day  and  a  night 
in  prison  elsewhere  than  in  our  gaol  under  the  custody 
of  our  own  officers.  And  if  any  one  has  died  in  pris- 
on and  been  buried  without  view  of  the  coroner,  then 
let  it  be  inquired  who  buried  him,  and  of  the  manner 
of  his  death  ;  and  those  who  are  indicted  and  convicted 
of  the  first  article  shall  lose  their  wardenship  in  fee, 
and  if  their  offence  extends  farther,  shall  be  punished 
more ;  and  as  to  the  other  article,  the  township  where 
such  bodies  were  buried  shall  be  in  our  mercy,  and  if 
there  be  any  felony,  let  those  Avho  shall  be  indicted 
answer  it. 

6.  Afterwards  let  inquiry  be  made  concerning  weirs 
raised  in  common  waters,  and  concerning  waters  and 
highways  stopped  or  straitened  or  in  other  manner 
appropriated,  and  concerning  watercourses  diverted  ; 
also  of  walls,  houses,  marlpits,  or  ditches,  made  near 
the  common  road  to  the  nusance  of  passers  by,  and  of 
those  who  are  guilty  of  such  nusances ;  and  of  higli- 
ways  not  widened,  and  of  those  who  have  neglected  to 
watch  according  to  the  ordinance  of  our  Statutes  of 
"Winchester;  and  of  landmarks  and  boundaries  re- 
moved ;  and  according  to  the  presentment  of  these 
articles,  let  the  abuses  he  redressed  by  view  of  the 
presentors  at  the  cost  of  the  offenders,  and  let  the 
guilty  be  amerced  in  proportion  to  the  damage  they 
have  done  and  the  profit  they  have  received  there- 
from. 

7;  Concerning   those  also  who  have  tortiously  dis- 


68  BRITTOK  [I,  *33. 

turbed  the  judgments  of  our  Court,  so  that  execution 
thereof  cannot  be  made,  or  have  knowingly  broken  the 
sequestrations  of  our  officers  ;  and  let  such  be  punished 
by  imprisonment  or  fine. 

8.  Also  concerning  lands  and  tenements  alienated  in 
mortmain  ;  and  let  such  lands  and  tenements  be  taken 
into  our  hand  without  replevin  ;  and  the  purchasers 
also  shall  be  in  our  mercy  and  charged  with  the  issues 
from  one  year  after  the  purchase,  and  the  sheriff  shall 
be  answerable  to  us  for  such  issues. 

9.  Let  inquiry  be  made  of  false  weights  and  measures, 
and  let  such  order  be  taken  as  shall  be  mentioned  in 
the  chapter  concerning  measures, 

10.  Let  inquiry  also  be  made  of  clerks  who  hold 
pleas  of  lay  people  concerning  other  matters  than  wills, 
marriages,  or  tithes,  or  who  have  adjudged  any  layman 
in  Court  Christian  to  any  pecuniary  payment,  or  in  any 
other  manner  or  case  than  in  the  articles  aforesaid,  or 
who  have  excommunicated  lay  people  wrongfully,  or 
wrongfully  caused  them  to  be  apprehended  and  im- 
prisoned ;  of  those  also  who  have  aggrieved  others  by 
maliciously  serving  them  with  two  bills  ^  or  summonses 
for  the  same  day  at  different  places ;  and  let  all  such  be 
punished  by  imprisonment  and  fine. 

*  The  text  here  is  doubtful.  The  mention  of  abuses  of  ecclesi- 
astical courts  immediately  preceding  lends  some  support  to  the 
reading  bulles,  which  appeared  in  the  former  printed  editions  of 
Britton.  Bracton  (f.  402  b.)  has  a  form  of  prohibition  issued  to 
an  ecclesiastical  court  from  proceeding  in  a  cause  concerning  an 
advowson  under  the  authority  of  a  letter  of  the  Pope. 


I,  *33.]        OF  VAKIOUS  WEONGS.  G9 

11.  Moreover  let  inquiry  be  made  of  those  who  have 
taken  thef bote,^  of  menders  of  clothes  dwelling  out  of 
boroughs  or  cities ;  ^  and  also  of  tanners  who  follow  the 
trade  both  of  a  tanner  and  of  a  butcher  retailing  meat ;  ^ 
and  of  those  who  blanch  the  skins  of  beasts  which  have 
been  stolen,  that  they  may  not  be  known  again  ;  also 
of  cooks  who  knowingly  cook  stale  or  stolen  meat  or 
any  kind  of  flesh  hurtful  to  the  health  of  man  for  the 
purpose  of  retailing  it  ;  also  of  forestallers  ;  and  of 
those  who  take  up  more  carts  for  our  use  than  we 
need  ;  and  of  all  other  offenders  against  the  form  of 
our  statutes ;  also  concerning  messengers  and  others, 
who  go  about  aggrieving  the  people  by  representing 
themselves  as  in  the  service  of  those  with  whom  they 

1  '  Taking  thef  bote'  is  explained  in  a  note  in  MS.  N,  as  equiv- 
alent to  letting  thieves  escape  for  reward.  In  the  Statutes  of 
Wales  it  is  thus  defined  :  '  De  Thefbote,  hoc  est  de  emenda  furti 
capta  sine  consideratione  curiae  Regis.'  (Stat.  Wall.  (12  Ed.  1.) 
c.  4.)  The  word  appears  to  have  originally  signified  the  legal 
bote  or  composition  for  theft ;  and  then  to  have  been  applied  to 
the  illegal  compounding  of  theft,  or  taking  money  to  maintain 
or  connive  at  such  offenders.  See  the  Glossaries  of  Ducange  and 
Spelman ;  Terms  de  la  lej",  s.  v.  Theftbote  ;  Coke,  Inst.  iii.  134. 

2  '  It  is  forbidden,'  says  the  commentator  in  MS.  N.,  that  any 
redubber  of  clothes  or  tanner  or  bleacher  of  skins  (i.  e.  Wyttatm- 
ares),  shall  dwell  elsewhere  than  in  cities  or  boroughs,  to  avoid 
the  mischief  of  receiving  stolen  goods.  For  a  receiver  may  be 
the  occasion  of  great  wickedness,  as  is  commonly  said  :  Ne  is 
non  thef  wythouten  rescet.'  As  to  whitetawers  see  Stat.  Wall. 
(12  Ed.  I.)  c.  4 ;  Cowel's  Interpreter,  s.  v.  Whitawarii. 

3  This  restriction  of  trade  was  at  a  later  time  established  by 
Statute.     Stat.  1  Jac.  I.  c.  22.  s.  3. 


70  BRITTOK.  [I,  *38  b. 

are  not  ;  of  those  also  who  invent  and  report  rumours 
and  falsehoods  concerning  us  ;  of  those  also  who  flay 
or  shear  sheep  ;  and  of  those  who  have  coursed  in 
others'  warrens  without  leave  ;  also  concerning  all 
hamsokens,  and  blood  feloniously  shed  since  the  last 
eyre  ;  and  upon  every  such  presentment,  let  a  speedy 
remedy  be  applied  with  punishment  either  of  life  or 
limb  or  other  penalty. 

12.  Further,  let  inquiry  be  made  concerning  those 
who  did  not  appear  before  us  or  before  our  Justices  the 
first  day  of  the  eyre  according  to  their '  :immons,  and  let 
such  be  amerced.  The  like  concerning  those  who  alienat- 
ed their  tenements  against  the  eyre,  that  they  might 
not  be  summoned  upon  juries  or  inquests. 

13.  Let  inquiry  also  be  made  of  customs  used  in  the 
county  differing  from  the  common  law,  and  what  they 
are,  and  if  there  be  any  repugnant  to  the  common  l{j,w, 
let  them  be  prohibited,  unless  they  have  been  con- 
firmed by  us  or  our  predecessors. 


T,  *34.]  OF  OFFICERS.  Tl 


CHAPTER    XXII. 

Of  our  Officers. 

1.  Let  inquiry  be  made  concerning  our  escheators 
and  under  escheators,  and  what  lands  they  have  seized 
into  our  hand  in  the  county  since  the  last  eyre  ;  and  of 
the  several  lands  so  seized  let  a  separate  inquiry  be 
made  of  the  true  value  of  the  profits  which  every  part 
returned  to  them  or  might  have  returned  to  others 
during  the  time  of  their  possession  ;  also  of  waste 
committed  by  them  in  parks  and  in  vi varies,  of  venison, 
of  fish,  and  of  rabbits  and  of  other  destruction  done  by 
them  in  warrens  and  woods  and  in  other  things,  and  of 
the  value  thereof  ;  and  of  the  chattels  found  in  such 
tenements  or  elsewhere  and  taken  by  them  during  the 
time  the  lands  remained  in  their  custody, 

2.  Inquiry  is  also  to  be  made  of  all  their  receipts  to 
our  use  and  their  own  use,  how  much  they  have  taken 
for  endowing  widows,  or  for  suffering  them  to  be  en- 
dowed, or  for  permitting  heirs  being  infants  to  continue 
with  their  mothers  ;  and  also  for  making  insufficient 
extents  of  land,  or  for  certifying  our  wardships  and  our 
marriages  to  be  less  than  their  real  value,  or  for  con- 
cealing anything  which  ought  to  turn  to  our  profit  ; 
or  for  procuring  or  suffering  false  inquests  to  pass  upon 
the  ages  of  our  wards,  or  in  any  other  thing,  to  our  prej- 


73  BKITTON.  [I,  *34  K 

udice  ;  and  let  such  presentments  as  shall  be  made 
concerning  these  officers  be  enrolled  and  transmitted 
to  the  exchequer,  and  there  determined.  We  reserve 
however  the  judgments  upon  great  offences  committed 
by  them  for  our  own  determination. 

3.  In  the  next  place  let  inquiry  be  nciade  concerning 
the  fees  taken  and  frauds  committed  by  coroners,  their 
clerks,  and  officers,  according  to  that  which  is  con- 
tained in  our  Statutes  of  Exeter.  Also  of  sheriffs  and 
other  officers,  who  for  reward  or  entreaty  or  out  of  friend- 
ship for  any  man  have  concealed  felonies  committed  in 
their  bailiwicks,  or  suffered  prisoners  to  remain  unappre- 
hended, whether  within  franchises  or  without,  or  have 
let  to  mainprise  prisoners  Avho  were  not  bailable,  and 
have  detained  others  who  Avere  bailable. 

4.  Likewise,  how  many  prisoners  have  escaped  out 
of  our  prison  or  from  the  custody  of  any  others  in  that 
county  since  the  last  eyre,  and  who  they  are,  and  out 
of  whose  custody  they  escaped,  Avhat  chattels  they  had, 
and  what  is  become  of  their  chattels,  into  whose  hands 
their  lands  are  come,  what  they  are  worth  a  year,  and 
who  has  received  the  profits  thereof  since  their  escape, 
and  from  what  time  ;  also  how  many  provers  have  es- 
caped, and  out  of  whose  custody,  and  by  whose  consent 
such  prisoners  have  escaped.  And  for  every  escape 
out  of  the  custody  of  the  sheriff,  let  the  sheriff  be 
amerced  one  hundred  shillings,  and  for  the  escape  of  a 
prover,  let  him  be  committed  to  prison  during  our  pleas- 
ure. Let  inquiry  also  be  made  concerning  the  defects 
of  gaols,  what   they  are,    and   who  ought  to  repair 


I,  *35.]  OF  OFFICEES.  73 

them,  and  through  whose    default  such  escapes  have 
happened. 

5.  Also  concerning  sheriffs,  their  clerks  and  officers, 
who  have  falsely  and  maliciously  made  pro  vers  appeal 
innocent  people,  or  hindered  them  from  appealing  the 
guilty  ;  and  let  such  as  are  guilty  of  this  offence  be  im- 
prisoned during  our  pleasure.  Also  concerning  sheriffs 
who  have  knowingly  let  their  hundreds  to  farm  to 
persons  of  no  substance  at  too  high  a  rent,  to  the  wrong- 
ful oppression  of  the  people  in  divers  manners  ;  and 
let  such  be  amerced. 

6.  Also  concerning  sheriffs  and  bailiffs  who  have 
levied  money  of  the  chattels  of  felons,  or  for  the  escape 
of  prisoners,  or  from  amercements  for  defaults  made 
before  coroners  or  escheators  or  other  general  inquirers, 
or  for  nonprosecution  in  appeals  of  felony,  or  from 
mainpernors  who  failed  in  producing  the  persons  deliv- 
ered to  them  on  writs  of  menace,  or  for  not  pursuing 
the  hue  and  cry  raised,  or  for  treasure  or  wreck  of  sea, 
or  sturgeon  or  whale  found  and  carried  away,  which 
amercements  no  man  ought  to  levy  without  our  writs  of 
green  wax  by  estreats  of  our  exchequer  ;  and  let  such 
offenders  be  punished  by  fine. 

7.  Also  concerning  sheriffs,  who  have  taken  fines  and 
amercements  from  persons  in  their  bailiwick,  that  they 
might  not  be  distrained  to  become  knights,^  in  which 

^  As  to  the  date  attributed  in  the  margin  above  to  tlie  so  called 
Statutum  de  militibus,  which  has  been  commonly  ascribed  to  1 
Ed.  II.,  and  the  whole  subject  of  compulsory  knighthood,  see  a- 
paper  by  the  Editor  in  the  Archaeologia,  vol.  xxxix,  p.  216. 


74  BRITTON.  [I,  *35  h. 

case  the  sheriffs  are  amerciable  ;  or  that  have  main- 
tained suits  or  the  parties  to  actions,  and  have  procured 
false  inquests,  whereby  justice  has  been  hindered,  in 
which  case  they  shall  be  punished  by  fine  ;  or  that 
have  levied  one  amercement  twice,  or  of  two  persons 
bearing  the  same  name,  or  have  levied  more  than  was 
contained  in  the  estreats  of  our  exchequer  ;  or  if  any 
sheriff  has  procured  the  removal  of  any  coroner  by  ob- 
taining our  writs  upon  false  suggestions,  in  which  case 
they  are  amerciable  ;  or  if  any  sheriff  through  malice 
has  kept  any  man  in  prison  whom  he  ought  to  have 
brought  before  our  Justices  at  our  gaol  delivery,  and 
in  this  case  they  are  to  be  punished  by  fine  and  im- 
prisonment. 

8.  Or  whether  any  sheriff  through  malice  has  taken 
more  cattle  for  our  debt,  or  another's,  than  the  amount 
of  the  debt,  or  whether  he  has  distrained  beasts  of  the 
plough,  or  wethers,  or  ewes,  or  household  utensils,  or 
riding-horses,  or  apparel,  or  things  within  doors,  when 
other  sufficient  distress  might  have  been  found,  and  that 
without  doors  ;  and  whether  any  one  has  caused  such 
distresses  to  be  driven  out  of  tlie  fee,^  or  whether  they 
would  not  suffer  such  beasts  to  be  fed  and  supported  by 
the  servants  and  at  the  cost  of  the  owners,  to  the  injury 
of  one  party  and  to  the  advantage  of  the  other ;  and  in 
these  cases  they  are  amerciable  ;  and  who  have  kept 
such  distresses  impounded  above  fifteen  days. 

1  It  is  possible  some  words  may  have  been  lost  in  this  sentence. 
The  rule  was,  that  distresses  were  not  to  be  driven  out  of  the 
county,  or  taken  elsewhere  than  in  the  lord's  fee.  Stat.  Marl. 
(53  Hen.  III.)  c.  2,  4,  15,  Stat.  West.  I.  (3  Ed.  I.)  c.  16. 


I,  *36.]  OF  OFFICERS.  75 

9.  Of  those  also  Avho  have  suffered  other  pleas  to  be 
pleaded  in  Court  Christian  besides  such  as  relate  to 
wills,  matrimony,  and  subjects  merely  spiritual,  wherein 
no  money  is  taken  from  any  of  the  laity,  or  have  suf- 
fered a  layman  to  take  oath  before  the  ordinary. 

10.  It  is  also  to  be  inquired  who  have  taken  fines  for 
redisseisins,  or  for  surcharge  of  pasture,  and  for  pur- 
prestures ;  and  who  have  accepted  annual  fees  or  robes 
or  other  bounty  for  suffering  any  wrong  to  be  done  to 
us.  Also  concerning  sheriffs  or  bailiffs,  who  have  sum- 
moned more  people  upon  juries  and  inquests  than  were 
necessary,  with  intent  to  oppress  some  of  them  and 
take  bribes  from  others  for  leave  to  stay  at  home,  or  to 
remove  some  from  the  panel  and  put  others  thereon  ; 
•concerning  those  also  who  have  put  persons  on  juries 
or  inquests  who  were  sick,  or  disabled  by  gout,  or 
maimed,  or  passed  seventy  years  of  age,  or  persons  not 
resident  in  the  county,  or  persons  who  live  remote  and 
may  be  supposed  to  have  less  knowledge  of  the  truth 
-of  the  matter  in  dispute ;  of  such  also  as  have  put  on 
the  panel  persons  holding  land  under  forty  shillings  to 
do  duty  out  of  the  county,  or  under  twenty  shillings 
to  be  on  inquests  and  juries  in  the  count3\ 

11.  Let  inquiry  be  also  made  concerning  bailiffs 
who  make  scotales,^  in  order  to  collect  money  of  poor 

^  Scotales  (A.  S.  scot,  payment,  eale,  ale)  appear  to  have  been 
meetings  for  drinking,  which  were  in  some  way  made  the  occa- 

•«ion  of  extortion  by  foresters  and  other  bailiffs.  See  Ducange. 
Gloss,  6".  V.  Scotallium  ;  Capitula   itineris    (printed  among  the 

•Statutes  of  the  Realm),  c.  45.  var.  leet.  ;  Fleta,  p.  38  (§  102). 


76  BRITTOK  [I,  *36  h. 

people,  and  concerning  such  as  collect  sheaves  in  harvest 
and  lambs  and  young  pigs,  and  thus  go  about  begging, 
and  have  them  fed  in  their  bailiwick,  to  the  grievance 
of  the  people. 

12.  Further  let  inquiry  be  made  concerning  sheriffs 
who  have  held  their  tourn  oftener  than  twice  a  year ; 
and  of  their  hundreders  and  others,  who  have  held 
their  views  of  frankpledge  oftener  than  twice  a  year ;  ^ 
also  concerning  sherilfs  who  have  answered  to  us  less 
than  they  ought  for  issues  forfeited,  in  which  case  they 
are  amerciable  in  double  the  value  of  the  profit  they 
have  made. 

13.  The  like  of  Justices,  sheriffs,  hundreders,  and 
others  who  have  courts,  and  of  the  stewards  and  bail- 
iffs of  the  same,  who  through  malice  have  procured 
suits  to  be  stirred  up  against  any  to  oppress  them,  or 
have  caused  our  writs  of  right  to  be  brought  wrongfully 
in  their  court,  in  order  to  increase  their  court  and  the 
amercements  of  it ;  or  have  amerced  people  according  to 
their  own  assessing,or  in  any  other  manner  than  by  their 
peers,be3'ond  the  proportion  of  their  offence,  contrary  to 
the  ordinance  of  the  Great  Charter.  And  of  all  Avrong- 
ful  payments  taken  by  our  officers  of  traverse  or  of  toll, 
as  of  lestage,  pontage,  murage,  or  causeage,  in  which 
case  they  are  amerciable  in  double  the  amount  of  the 
damages.  But  as  to  trespasses  of  Justices  we  will  that 
no  judgment  shall  be  given  without  our  order. 

J  By  tlie  Anglo-Saxon  customs  hundred  courts  were  held 
twelve  times  a  year  for  other  business,  but  twice  only  for  filling 
up  the  tithings.     (See  leg.  Hen.  I.  1.  vii.  s.  4  ;  1.  viii.  s.  1.) 


I,  *3T  ]  OF  OFFICERS.  77 

14.  Also  of  prises  or  seizures  made  by  our  castellans, 
and  others*  who  take  upon  themselves  to  be  our  takers 
of  victuals  or  other  things  ;  let  it  be  inquired  by  whom 
such  prises  have  been  taken,  and  to  what  damage,  and 
of  what  people ;  and  in  such  case  our  will  is,  that 
none  be  warranted  by  continuance  of  seisin  to  the  dam- 
age of  people,  but  satisfaction  be  made  to  all,  nor 
shall  an}'^  one  make  any  manner  of  prises  for  us,,  unless 
he  has  the  authority  of  our  letters  making  express  men- 
tion thereof. 

15.  Of  sheriffs  also  and  all  other  our  officers,  Jus- 
tices, coroners,  and  others,  who  shall  oppress  religious 
communities  and  other  persons,  overburdening  them 
by  often  coming  with  too  great  a  crowd  of  people  to 
lodge  w^ith  them  at  their  cost,  or  by  quartering  servants, 
horses,  and  dogs  upon  them,  or  else  by  borrowing 
horses  or  carts  or  money  of  them,  or  by  begging 
timber  or  wood  or  other  things  for  themselves  or  some 
of  their  household  or  friends  ;  in  which  case  let  them 
be  punished  by  fine. 

16.  Let  inquiry  also  be  made  concerning  our  ser, 
jeants  and  our   attorneys   assigned   to  prosecute  and 

1  It  is  remarkable  that  the  word  '  purveyor,'  which  was  after- 
wards in  such  ill  repute,  does  not  appear  to  have  been  used  at 
this  time,  although  the  abuse  of  purveyance  was  at  its  height. 
No  grievance  is  more  frequently  mentioned  in  the  ancient  statute- 
book.  By  a  statute  of  Edward  III.  (36  Ed.  3,  c.  2)  it  was  enacted 
that  the  very  name  of  purveyor  (le  haignous  noun  de  purveour) 
should  be  abolished,  and  the  officers  called  'buyers'  (achetours.) 
But  the  name  very  frequently  makes  its  appearance  in  the  stat- 
utes of  subsequent  reigns. 


T8  BRITTON.  [I,  *37  h. 

defend  our  rights,  whether  through  favour  or  otherwise 
they  have  permitted  or  suffered  any  great  lord  of  the 
county  or  other  to  continue  in  seisin  of  any  franchise, 
or  any  corporeal  thing  belonging  of  right  to  us  ;  and 
let  such  be  punished  by  fine.  Also  concerning  those 
who  have  remitted,  or  have  caused  to  be  put  out  of 
the  roll,  or  have  omitted  inserting  in  the  roll,  fines  and 
amercements  belonging  to  us ;  let  such  be  ransomed 
and  from  thenceforth  removed  from  the  Court,  and 
their  superiors  punished  at  our  will. 

17.  Also  concerning  our  officers  "who  have  main- 
tained any  wrong,  or  have  accepted  the  presentment 
to  any  church,  of  which  the  advowson  was  in  litigation 
in  our  Court,  and  let  such  be  punished  according  to 
the  statutes;  or  who  have  maintained  any  plea  bv 
champerty  or  in  any  other  manner ;  and  whether  they 
have  hindered  justice  in  any  point ;  and  of  the  fees 
which  they  take,  and  of  whom,  secretly  or  openly. 

18.  Also  concerning  the  clerks  of  our  Court  of 
Chancery,  and  of  the  one  Bench  and  the  other,  and  of 
the  Exchequer,  who  take  more  than  a  penny  for  writ- 
ing a  writ ;  and  of  chirographers  who  take  more  than 
four  shillings  for  the  chirograph  of  a  fine  ;  and  of 
criers,  whether  any  of  them  take  more  than  is  ap- 
pointed by  our  statute  ;  and  let  such  offenders  be 
fined,  and  expelled  the  Court,  and  if  their  superiors 
knew  of  their  extortion,  and  took  no  measures  to  cor- 
rect it,  let  them  be  punished  at  our  will.  Also  con- 
cerning the  clerks  of  Justices  Itinerant,  whether  they 
have  taken  more  than  two  shillings  for  delivering  the 


I,  *38.]  OF  OFFICERS.  ^9 

chapters  of  the  e3're  according  to  the  ordinance  of  our 
statutes,  or  whether  tliey  have  been  guilty  of  any 
other  excesses  prohibited  by  our  statutes,  or  whether 
any  enrollment  has  been  delayed,  or  any  manner  of 
damage  or  grievance  done  to  any  one,  on  account  of 
damages  not  allowed  to  the  clerks  of  our  Justices, 
whoever  the  Justices  may  be  ;  and  let  them  be  punished 
by  fine  and  expelled  the  Court. 

19.  Let  it  be  also  inquired  concerning  confederacies 
between  the  jurors  and  any  of  our  officers,^  or  between 
one  neighbour  and  another,  to  the  hinderance  of  justice ; 
and  what  persons  of  the  county  procure  themselves  to 
be  put  upon  inquests  and  juries,  and  who  are  ready  to 
perjure  themselves  for  hire  or  through  fear  of  any  one ; 
and  let  such  persons  be  ransomed  at  our  pleasure,  and 
their  oath  never  after  be  admissible. 

20.  Let  it  also  be  inquired  of  cloth  made  out  of  the 
realm,  brought  into  the  county  and  sold  there,  not 

1  The  commentator  in  MS.  A'' gives  the  following  example  of  an 
offence  coming  under  this  head.  '  In  the  county  of  Northampton 
a  sheriff  named  Sir  Robert  de  Veer  in  the  30th  year  of  King 
Edward  made  a  confederacy  with  several  others  of  the  county, 
that  some  of  them  should  indict  persons,  and  the  others  save 
them,  for  bribes,  according  as  the  same  sheriff  should  arrange 
the  panels.  These  persons  were  afterwards  called  '  the  company 
of  the  pouch  '  (les  queux  furent  appelez  puis  :  '  La  Compaignie  de 
la  pouche).'  Sir  Robert  de  Vere  here  referred  to  was  sheriff  of 
Northampton  29-30  Ed.  I.,  but  was  not  continued  in  liis  office  as 
was  then  usual,  possibly  on  account  of  the  above  offence.  See 
the  list  of  Sheriffs  in  Bridges'  History  of  Northamptonshire,  voL 
i.  p.  5.) 


80  BRITTON.  [I,  *38  h. 

being  of  the  right  assize  according  to  the  purport  of 
the  Great  Charter,  what  quantity  of  such  cloth  has 
been  sold  since  the  last  eyre,  and  by  whom,  and  what 
w^as  the  value  of  the  cloth  so  sold  by  each  merchant 
separately,  and  w4io  was  appointed  by  us  to  seize  such 
cloth  into  our  hand  ;  and  let  this  article  be  determined 
in  our  Exchequer. 

21.  Let  inquiry  also  be  made  of  wines  sold,  whereof 
the  tuns  did  not  contain  two  hundred  and  forty  gallons, 
and  who  those  are  who  thus  sold  them  by  wholesale  ; 
and  also  of  the  prisage  of  wines,  how  many  tuns  have 
been  taken  to  our  use  since  the  last  eyre,  and  by  whose 
hands,  and  whether  those  wines  have  been  sold  to  any 
other  than  to  ourselves  without  our  orders ;  and  let 
this  article  also  be  determined  at  our  Exchequer. 

22,  In  like  manner  let  inquiry  be  made  concerning 
all  sorts  of  flesh  and  fish,  and  of  every  kind  of  spice, 
wax,  silk,  canvas,  cloth,  and  avoirdupois,^  and  of  all 
manner  of  prises,  which  have  been  taken  to  our  use 
since  the  last  eyre,  and  of  the  value  of  each  prise. 
And  let  inquiry  also  be  made  concerning  our  customs 
of  leather  and  wool,  who  have  collected  them,  and  how 
many  sacks  of  wool  the  collectors  have  permitted  to 
pass  without  paying  custom,  and  how  much  the  yearly 
value  of  every  kind  of  custom  belonging  to  us  amounts 
to;  and  let  these  articles  likewise  be  determined  at 
our  Exchequer,  according  to  the  discretion  of  the 
Treasurer  and  Barons. 

1  This  word  is  said  to  have  been  applied  to  all  goods  sold  by 
weight.    See  Ducange,  Gloss,  s.  v.  averium  ponderis. 


I,  *39.]  OF  APPEALS.  81 


CHAPTER  XXIIL 
Of  AjpjpeaU. 

1.  Having  in  part  treated  of  the  articles  provided  for 
our  ej^res,  b}'^  which  we  desire  to  punish  evildoers  and 
to  convict  the  wickedness  of  people  at  our  own  suit, 
we  will  now  set  forth  how  felonies  and  crimes  may  be 
punished  at  the  suit  of  others ;  and  first  of  appeals. 
An  appeal  is  a  plaint  brought  by  one  person  against 
another  in  a  set  form  of  words  with  intent  to  convict 
him  of  felony.  Not  every  man  hoAvever  can  be  an 
appellor ;  for  neither  an  outlawed  person,  nor  one  who 
has  abjured  our  realm,  or  been  sentenced  to  death  in 
our  Court,  nor  an  approver  who  has  failed  of  his  proof, 
nor  an  infant  under  the  age  of  fourteen  years,  nor  a 
madman,  nor  an  idiot,  nor  one  deaf,  or  dumb,  nor  a 
leiper  expelled  from  common  society,  nor  a  person  in 
holy  orders,  is  to  be  admitted  in  appeals ;  yet  tliey 
may  accuse  our  mortal  enemies  abiding  within  our 
dominions. 

2.  There  are  some  felonies  which  concern  our  suit, 
and  may  be  prosecuted  for  us  and  not  by  us,^  as  {igainst 

1  I  understand  this  as  meaning,  that  certain  crimes  affecting 
the  king,  as  well  as  certain  crimes  affecting  subjects,  may  be 
prosecuted  by  appeal,  but  in  that  case  the  appeal  must  be  by  a 
subject  for  the  king  and  not  by  the  king  himself.  So  Bracton 
says  that  where,  upon  failure  of  an  appeal  by  the  death  of  the 


82  BRITTON.  [I,  *39  Z.. 

our  mortal  enemies,  unci  for  counterfeiting  our  seal 
and  our  coin  ;  and  there  ure  some  which  concern  the 
suit  of  others  and  not  ourselves,  as  of  treason  committed 
against  any  lord,  by  violating  his  wife  or  his  daughter 
or  the  nurse  of  his  children,  or  of  counterfeiting  the 
seal  of  his  lord.  There  are  also  some  felonies,  where 
no  other  execution  follows  at  our  suit  than  such  as. 
takes  place  in  trespass,  as  in  mayhems,  wounds,  and 
imprisonment;  and  there  are  others,  where  judgment 
of  death  ensues,  as  well  at  our  suit  as  at  another's,  as 
in  felonies  of  the  death  of  a  man,  rape,  arson,  rob- 
beries, and  others. 

3.  First  we  must  treat  of  appeals  of  felonies  which 
may  be  brought  for  us,  and  not  by  us  ;  as  of  treason  and 
a  compassing  designed  against  our  person,  to  put  us,  or 
our  consort,  or  our  father,  or  our  mother,  or  our  chil- 
dren, to  death,  or  to  disinherit  us  of  our  kingdom,  or 
to  betray  our  host,  although  such  compassing  be  not 
put  in  execution.  Of  which  compassing,  our  will  is,  that 
the  accusation  be  laid  before  ourselves,  or  some  other 
who  shall  without  delay  inform  us  thereof ;  and  any 
person  shall  be  permitted  to  make  such  accusation ;  ^ 

appellor,  the  appellee  is  brought  to  trial  at  the  king's  suit,  he 
cannot  defend  himself  by  his  body,  but  must  put  himself  on  the 
country,  because  the  king  does  not  fight,  and  has  no  other 
champion  but  the  country,  and,  even  if  lie  were  allowed  to  fight, 
lie  could  not  use  the  words  de  visu  et  auditu  necessary  in  an  ap- 
peal.    Brae.  142. 

1  In  case  of  high  treason,  a  servant  or  even  a  bondman  might 
appeal  his  own  lord.  This  was  contrary  to  the  general  rule  re- 
specting appeals.     Brae.  141,  155  b. 


I,  *4U.]  OF  APPEALS.  S3 

for  no  presentment  can  be  made  thereof  after  any  great 
length  of  time,  without  the  presentors  being  in  some 
degree  implicated  either  in  consent  or  in  concealment. 

4.  When  any  person  shall  offer  to  prove  this  crime 
against  one  or  more,  we  will  cause  the  body  of  the 
accused  to  be  immediately  apprehended  and  brought 
before  us.  And  when  they  appear  for  trial,  let  the 
accuser  make  his  appeal  for  us  by  some  serjeant  in  this 
manner.  '  John  who  is  here  appeals  Peter  Avho  is 
there  of  this,  that  being  in  such  a  place  on  such  a  da^-^ 
and  year,  the  same  John  there  heard  such  a  death  or 
such  a  treason  contrived  between  the  same  Peter  and 
another,  such  an  one  by  name,  and  by  such  confedera- 
cies, and  that  the  said  Peter  thus  acted  and  thus  con- 
trived feloniously  as  a  felon  and  traitorously  as  a  traitor, 
he  the  same  John  is  ready  to  prove  by  his  body,  in 
any  manner  the  Court  shall  award  that  he  ought  to 
prove  it.'  In  every  felony  however  battle  may  be 
hindered  by  many  circumstances  ;  in  which  cases  it 
will  be  necessary  to  speak  otherwise  ;  for  if  the 
appellor  be  maimed,  or  under  the  age  of  fourteen  years, 
or  above  seventy,  or  in  holy  orders,  or  a  woman,  or  if 
he  can  be  aided  by  record,  then  he  shall  say  thus  : 
'  This  the  same  John  is  ready  to  prove,  in  whatsoever 
manner  the  Court  shall  award  that  a  man,  who  is 
maimed,  or  of  such  an  age,  or  of  such  a  condition, 
ought  to  prove  it  ;'  or  he  may  say,  'And  of  this  he 
vouches  record  of  such  or  such  an  one,  and  of  their 
rolls,  to  warrant,'  ^ 

1  It  is  not  easy  to  see  to  wliat  sort  of  cases  this  mode  of  proof 


M  BRITTOK  [I,  *40  b. 

5.  We  forbid  any  attorneys  to  be  received  either 
for  the  appellor  or  for  the  appellees,  or  any  essoin  to 
be  allowed  on  one  side  or  the  other,  in  any  cases  of 
death. 

6.  And  our  will  is,  that  if  the  appeal  be  pronounced 
by  the  mouth  of  a  serjeant,  and  be  abated  on  account 
of  its  being  ill  set  forth,  or  through  other  default  of 
the  serjeant,  who  ought  to  understand  the  art  of  plead- 
ing, the  serjeant  himself  shall  be  amerced  one  hundred 
shillings  ;  and  if  there  was  secret  malice  in  the  act,  and 
he  be  convicted  thereof,  then  let  him  be  sent  to  prison, 
and  suspended  from  his  office. 

Y.  And  as  to  the  defence,  the  appellee  may  defend  him- 
self in  this  manner.  '  Peter  who  is  here  defendeth  all 
the  felonies,  and  all  the  treasons,  and  contrivances,  and 
compassings  of  mischief  against  the  person'  of  such  an 
one,  or  such  an  one,  according  as  he  is  charged,  word  by 
word.  And  we  will  that  in  these  appeals,  it  shall  be 
more  necessary  for  the  appellor  to  set  forth  the  words 
orderly  without  any  omission,  that  his  appeal  may 
stand,  than  for  the  defendant  in  his  defence ;  and  in 
every  felony  we  allow  the  defendant  to  defend  the 
words  of  the  felony  generally,  without  treating  him  as 
undefended,  so  that  for  default  of  a  word  or  syllable 
he  be  not  adjudged  undefended,  but  it  shall  be  suffi- 

refers.  Possibly  to  such  a  case  of  manifest  homicide  or  petty 
treason  as  is  mentioned  before,  (c.  vi.  s.  4)  where  the  Coroner's 
roll  maj'  have  been  held  conclusive,  no  other  proof  eitlier  by 
battle  or  by  tlie  country  being  required.  See  before,  p.  37,  note  • 
find  comnare  Bracton.  1H7. 


I,  m.-]  OF  APPEALS.  85 

cient  for  him  to  say,  that  he  is  not  guilty  of  such 
•felony  as  the  appellor  lays  to  his  charge,  and  that  he 
is  read}'^  to  defend  the  same  against  him  by  his  body, 
in  such  manner  as  the  Court  shall  award  that  he 
ought  to  do  it,  or  by  the  country.  And  in  cases  of 
death  none  shall  be  held  convicted  for  being  unde- 
fended, but  he  shall  be  put  to  penance,  until  he  be  pre- 
pared to  answer  better,  if  he  has  spoken  his  defence 
by  his  own  mouth  ;  and  if  by  a  serjeant,  who  is  avowed 
by  the  appellee,  let  the  serjeant  be  amerced  as  above 
directed,  and  if  he  be  disavowed,  let  him  be  punished 
by  imprisonment  and  fine,  and  let  the  defendant  pro- 
vide himself  with  a  better  serjeant. 

8.  The  appellee,  having  sufficiently  defended  the 
substance  of  the  appeal,  may  then  aid  himself  by  ex- 
ceptions, and  first  to  the  jurisdiction  of  the  judge, 
afterwards  to  the  person  of  the  appellor,  then  to  his 
own  person,  and  next  to  the  appeal,  and  lastly  to  the 
action,  as  shall  be  mentioned  amongst  exceptions. 
With  respect  to  the  jurisdiction,  he  may  say,  that  he 
is  not  bound  to  answer  in  a  place  where  the  judge  is  a 
party,  since  in  every  judgment  there  ought  not  to  be 
less  than  three  persons,  to  wit,  a  judge,  a  plaintiff,  and 
a  defendant ;  and  in  cases  where  we  are  party,  our 
pleasure  is,  that  our  Court,  to  wit,  the  earls  and  barons 
in  time  of  parliament,  shall  be  judges.  The  jurisdiction 
of  the  judge  being  established,  he  should  consider 
whether  he  can  aid  himself  by  excepting  either  to  the 
person  of  the  plaintiff  or  to  his  own  person  ;  and  next 
in  abatement  of  the  appeal,  which  may  occur  in  many 


86  BRITTON.  [I,  *41  h. 

cases,  as  by  omittinf^  to  name  in  the  appeal  the  year, 
day,  or  place,  or  naming  one  name  instead  of  another, 
or  setting-  forth  the  appeal  thus,  '  This  showetii  unto 
you  John,'  where  he  ought  to  say,  '  John  appeals  ' ;  or 
by  closing  his  appeal  by  these  words,  '  and  this  I 
will  aver,'  instead  of  saying,  'this  I  offer  to  prove,' 
or  for  variance,  the  appeal  being  made  before  the 
Justices  in  one  form,  and  in  the  coroner's  roll  in 
another. 

9.  If  he  can  by  any  exception  abate  the  appeal,  then 
our  will  is  that  lie  be  acquitted  as  against  this  appellor, 
and  the  appellor  shall  be  committed  to  prison,  because 
he  has  failed  to  prove  that  he  bound  himself  to  prove ; 
and  so  it  shall  be  in  all  appeals  of  felon\^,  and  also 
where  the  appellor  withdraws  himself  from  his  appeal 
before  judgment ;  ^  and  his  pledges  to  prosecute  shall 
also  be  in  our  mercy,  because  they  have  failed  in  their 
enD;ao:ement.  But  in  these  cases  we  will  that  modera- 
tion  be  usetl,  inasmuch  as  such  persons  proffer  them- 
selves to  fight  ill  maintenance  of  our  peace. 

10.  But  though  it  happen  that  the  appellees  are  thus 

1  In  later  times  an  appellor  could  by  release  discharge  an  ap- 
peal, (Hale,  PI.  Cr.  vol.  i.  p.  9) ;  and  Blackstone  is  of  opinion  that 
the  chief  object  of  an  appeal  at  all  times  was  to  compel  the  de- 
fendant to  make  a  pecuniary  compensation  ;  and  that  when 
the  verdict  in  the  appeal  was  given  in  favour  of  tlie  appellor,  he 
might  insist  upon  what  terms  he  pleased  as  the  ransom  of  the 
defendant's  life,  or  for  a  commutation  of  tlie  sentence.  (Blackst. 
Comm.  vol.  iv.  \>.  .'{16.)  It  will  be  seen  that  this  opinion,  so  f.ir 
as  regards  appeals  for  minor  offences,  is  confirmed  by  our  jintlior. 
Soe  below,  cli.  xxvi.  .s.  2. 


1, 41  5.]  OF  APPEALS.  87 

acquitted  as  against  the  plaintiff,  it  does  not  therefore 
follow  that  they  are  not  guilty  of  what  is  laid  to  their 
charge  ;  wherefore  in  such  case  let  it  be  immediately 
•demanded  of  them  on  our  behalf,  how  they  will  acquit 
themselves  of  such  slander;  and  if  they  say,  by  the 
country,  then  they  shall  be  remanded  to  prison  until  a 
certain  day,  and  in  the  meantime  the  country  shall  be 
summoned,  and  according  to  the  verdict  of  the  country 
charged  thereon,  judgment  shall  be  given. 

11.  If  the  defendant  cannot  abate  the  appeal,  then 
it  shall  be  in  his  election,^  whether  he  will  defend  him- 
self by  his  body  or  by  the  country,  and  so  in  all 
felonies  prosecuted  by  private  persons,  except  in  special 
cases,  as  of  women,  persons  maimed,  and  ^  others  who 
neither  can  nor  ought  to  wage  battle.^    And  if  he  says 

1  In  Glanvill's  time,  the  appellee  of  felony  appears  to  have  been 
bound  to  defend  himself  by  battle,  unless  he  was  excused  for 
age  or  infirmity,  in  which  case  the  trial  was  by  ordeal.  (Glan. 
li.  14.  c.  1.)  The  beneficent  change  wliich  gave  the  accused  the 
election  of  purging  himself  by  the  country  was  introduced  be- 
tween the  time  of  Glanvill  and  Bi-acton. 

2  The  commentator  in  MS.  N.  adds,  that  if  the  appellee,  not 
being  actually  maimed,  is  otherwise  '  in  so  poor  a  state  '  that  his 
inability  to  fight  is  evident,  the  Court  ought  not  to  allow  him  to 
be  wantonly  destroyed  ;  and  that  lepers  are  not  permitted  to 
wage  battle,  lest  their  disease  should  be  communicated  to  the 
otlier  combatant.     See  before,  s.  1. 

It  was  one  of  the  privileges  of  the  citizens  of  London,  that 
they  should  not  be  obliged  to  wage  battle.  See  the  Charter  of 
Henry  I.  in  Ancient  English  Laws,  p.  217,  and  the  Cliarters  of 
Eiphard  I,  Henry  III.,  and  Edward  II.,  in  Liber  Custumarum.  p. 


88  BEITTON.  [I,  H2. 

by  his  body,  and  it  be  in  the  case  of  felony  at  the  prose- 
cution of  another,  then  let  the  matter  be  examined 
before  battle  is  joined,  whether  the  cause  be  trespass 
or  felony,  and  if  trespass,  let  the  appeal  be  abated 
by  the  Justices  ex  officio.  But  if  felony,  then  let  the 
defendant  give  security  to  defend  himself,  and  the 
appellor  security  to  prove  the  cause  ;  next  let  a 
day  be  given  them  to  provide  themselves  with  arms, 
and  let  the  defendant  in  the  meantime  remain  in 
prison. 

12.  When  they  appear  armed  in  Court,  let  the  plain- 
tiff repeat  his  appeal  word  for  word  as  he  did  before, 
and  the  defendant  defend  himself  as  before ;  and  after- 
wards let  them  take  each  other  by  the  hand,  and  let 
the  defendant  swear  first  in  this  manner,  and  the  appel- 
lor afterwards  as  shall  be  presently  more  fully  set 
forth.  '  Hear  this,  you  man  whom  I  hold  by  the  hand^ 
who  call  3^ourself  John  by  your  name  of  baptism,  that 
I,  Peter,  did  not  in  such  a  year,  nor  on  such  a  day,  nor 
in  such  a  place,  compass  or  propose  the  death  aforesaid, 
nor  did  assent  to  such  felony  as  you  have  charged  me 
with,  so  help  me  God  and  the  Saints.'  Afterwards  the 
appellor  shall  swear  thus.  '  Hear  this,  you  man  whom 
I  hold  by  the  hand,  who  call  yourself  Peter  by  your 
name  of  baptism,  that  you  are  perjured,  inasmuch  as 
on  such  a  day,  in  such  a  year,  and  in  such  a  place,  you 
did  propose  such  a  treason  or  such  a  death  as  I  have 

248,  252,  259.  The  same  immunity  was  claimed  by  the  citizens 
of  Tiincoln  (Kelham's  Britton,  p.  153,  note),  and  the  burgesses  of 
Bury.    Cron.  Joe.  de  Brakelonda,  p.  74. 


I,  *42  5.]  OF  APPEALS.  89 

said  against  you  in  the  appeal,  so  help  me  God  and  the 
Saints.' 1 

13.  Then  let  them  both  be  brought  to  a  place  ap- 
pointed for  that  purpose,  where  they  must  swear  thus. 
*  Hear  this,  ye  Justices,  that  I  John  (or  I  Peter)  haye 
neither  eaten  nor  drunk  anything,  nor  done  or  caused 
to  be  done  for  me  any  other  thing,  whereby  the  law  of 
God  may  be  abased,  and  the  law  of  the  devil  advanced 
or  exalted.'  And  thus  let  it  be  done  in  all  battles 
in  appeals  of  felony.  And  let  proclamation  be  imme- 
diately made,  that  no  one,  except  the  combatants, 
whatever  thing  he  see  or  hear,  be  so  bold  as  to  stir,  or 
cry  aloud,  whereby  the  battle  may  be  disturbed;  and 
whosoever  disobeys  the  proclamation  shall  be  impris- 
oned a  year  and  a  day. 

14.  Next,  let  them  go  to  combat,  armed  without 
iron  and  without  the  slightest  armour,^  their  heads 
uncovered,  their  hands  and  feet  bare,  with  two  staves 
tipped  w^ith  horn  of  equal  length,  and  each  of  them 
a  target  of  four  corners,  without  any  other  arms  where- 

1  Seidell  observes,  that  in  these  oaths  tlie  clause  de  visu  et 
auditu,  which  occurs  in  Bracton  (141  b),  is  omitted,  and  that 
this  is  in  analogy  to  the  rule  established  in  civil  trials  by  the 
Statute  of  Westminster  the  first,  c.  41.  Seldon's  Duello,  c.  vii. 
See  below,  p.  91,  note  ;  and  compare  s.  5.  p.  84. 

2  These  particulars  as  to  the  armour  and  weapons  of  the  com- 
batants in  an  appeal  are  not  found  in  Bracton  or  Fleta.  Leather 
armour  appears  according  to  most  authorities  to  have  been  al- 
lowed. Other  notices  of  tliis  curious  subject  ai*e  to  be  found  in 
Dugdale,  Orig.  Juridic.  68 ;  Dyer,  Rep.  301  ;  Y.  B.  1  Hen.  VI. 
7  a  :  Selden's  Duello,  c.  viii ;  Archseologia,  vol.  xxxii.  p.  287. 


90  BRIXTON.  [I,  *43. 

by  either  of  them  may  annoy  the  other;  and  if  eitlier 
of  them  have  any  other  arms  concealed  about  liim,  and 
therewith  annoy  or  offer  to  annoy  his  adversary,  let  it 
be  done  as  shall  be  mentioned  in  treating  of  battle  in 
a. plea  of  land.^ 

15.  If  the  defendant  can  defend  himself  nntil  the 
stars  can  be  seen  in  the  firmament,  and  demands  judg- 
ment whether  he  ought  to  combat  any  longer,  our  will 
is,  that  judgment  pass  for  the  defendant,  and  so  in  all 
battles  between  champions  ;  and  in  the  case  of  felony 
the  appellor  shall  be  committed  to  prison.  And  if 
the  defendant  will  confess  the  felony  before  he  is  other- 
wise attainted,  and  appeal  others  of  consenting  to  the 
same,  we  allow  him  to  be  admitted  thereto. 

16.  And  if  the  defendant  be  vanquished,  let  the 
judgment  be  this,  that  he  be  drawn  and  hanged,  or  put 
to  such  other  painful  death  as  we  shall  direct,  and  that 
all  his  movable  goods  be  ours,  and  his  heirs  disinherit- 
ed ;  and  his  children  shall  be  incapable  of  ever  hold- 
ing land  in  our  realm.  And  let  not  any,  unless  they 
would  be  suspected  themselves  of  the  felony,  presume 
to  intercede  for  him  ;  and  let  the  accuser,  who  without 
delay  shall  prosecute  such  felony  with  good  effect,  re- 
ceive from  us  a  notable  reward.  Appeals  may  likewise 
be  sued  for  us  in  the  same  manner  for  counterfeiting 
our  seal  and  our  coin,  and  also  for  violating  our  consort, 
or  our  daughters,  or  the  nurses  of  our  children  ;  and  in 
such  cases,  the  judgment  is,  to  be  drawn  and  hanged, 

^  The  passage  here  referred  to  is  not  to  be  found  in  the  work 
us  it  exists  at  present.    See  Introduction  by  tlie  Editor. 


I,  *43  i.]  OF  HOMICIDES.  ;91 

whether  the  conviction  be  upon  an  indictment  at  our 
suit  or  upon  an  appeal  by  another  person  lor  us. 


CHAPTEK    XXIV. 

Of  Appeals  of  Homicide, 

1.  Concerning  homicides,  our  will  is,  that  those  shall 
prosecute  whom  it  concerns,  to  wit,  the  male  nearest 
in  blood  of  the  kindred  of  him  who  has  been  feloni- 
ously killed,  or  one  who  has  done  homage  to  him  or  been 
of  his  household.!     ^jjd  their  right  of  action  shall  last 

1  A  woman  might  bring  an  appeal  of  the  death  of  herliusband. 
Mag.  Cart.  c.  34  Glan.  li.  14.  c.  3;  Brae.  125.  (s.  3.)  A  godson 
niigfiit  appeal  the  slayer  of  his  sponsor.  (Post,  s.  3.)  The  appel- 
lor in  earlier  times  was  required  to  be  one  who  liad  been  actually 
present  at  the  homicide.  (Glan.  li.  14.  c.  3.  Brae.  125,  138,  141, 
141  5.)  There  is  no  intimation  in  our  author  that  tliis  was  con- 
sidered necessary  in  his  time  ;  and  in  later  times,  wlien  appeals 
were  allowed  only  by  the  wife  or  the  heir  male,  it  was  not  re- 
quired. Staundford  Plac.  Cor.  59  b ;  Blackst.  Comm.  vol.  iv.  p. 
314.  Coke  treats  the  change  as  a  consequence  of  the  Statute  of 
Gloucester,  c.  9,  which  provided  that  appeals  should  not  be  so 
lightly  abated  as  they  had  previously  been.  Coke,  Inst.  ii.  317. 
The  case  of  the  champion  in  civil  actions  was  analogous,  the 
oath  de  visit  et  auditu  (See  Glan.  li.  2.  c.  3.)  being  abolished  by 
Stat.  West.  1.  c.  41,  on  the  ground  that  it  only  led  to  perjury 
Tlie  expre.ssion  used  by  the  older  authors  as  to  the  wife's  appeal 
for  the  death  of  her  husband.  '  killed  between  lier  arms,'  (Brac- 
Jon,  125,  148  6;  Fleta  53;  Britton,  po.sf,  s.  7.)  which  implied 
the  necessity  of  the  wife  being  present  at  the  killing  (See  Glan. 
li.  14.  c.  3.)  :  was  in  later  times  explained  to  mean,  that  the  wife 
was  'in  seisin  '  of  her  husband  as  liis  lawful  wife  at  the  time  of 


92  BRITTON.  [1,  *43  h. 

a  year  and  a  day.  Every  man  must  commence  his  ap- 
peal in  the  county  where  the  felony  was  committed, 
and  the  plaintiff  at  the  first  county  court,  when  he 
wishes  to  bring  his  plaint,  must  find  two  pledges  to 
prosecute,  and  cause  his  appeal  to  be  entered  in  the 
roll  of  the  coroner,  and  then  continue  the  same  from 
county  court  to  county  court  without  interruption  ;  and 
if  justice  be  not  done  either  to  the  plaintiff  or  to  the  ap- 
pellees, we  will  that  upon  reasonable  occasion  they 
may  by  writ  out  of  our  Chancery  remove  the  appeal 
out  of  the  county  court  before  us  wheresoever  we  shall 
be  in  England. 

2.  We  forbid  that  any  person  be  detained  in  prison 
for  an  accessory  fact,  if  he  can  find  mainpernors  toan- 
sw^er  for  him,  until  conviction  of  the  principal  fact,  or 
that  any  Justice  proceed  against  the  persons  appealed 
of  the  force  or  accessory  causes  before  conviction  of 
the  principal  fact,  or  until  those  who  are  appealed  of 
the  principal  fact  are  outlawed  for  their  conturaac^^ 

his  death.  See  Coke.  lust.  ii.  68,  317 :  and  compare  Mirror,  c.  3. 
s.  18.  There  is  another  observable  change  in  the  law  of  appeal, 
probably  connected  with  the  change  already  noticed.  In  the 
time  of  Glanvill  and  Bracton  it  would  seem  that  any  kinsman 
was  admitted  to  appeal,  although  of  several  appellors  the  nearer 
in  blood  was  preferred.  (Glan.  li.  14.  c.  3.  Brao.  125.)  In  our 
author's  time  the  appeal  appeal's  to  have  been  abatable,  if  there 
was  any  person  nearer  in  blood  than  the  appellor,  who  might 
have  appealed  though  he  did  not  actually  do  so.  See  below,  s.  3. 
But  the  author  of  the  Mirror  state.s  this  ground  of  exception  in 
accordance  with  the  older  practice  :  Sir,  cest  actor  n'  avera  nule 
accioun,  de  sicome  il  3'  ad  un  autre  pluis  prochein  de  sank  que 
ad  attame  son  appeal.     (Mii-r.  c.  3.  s.  18.) 


I,  *44.]  OF  HOMICIDES.  93 

And  if  the  person  appealed  as  principal  be  acquitted 
of  the  fact,  our  will  is,  tliat  those  who  are  indicted  or 
appealed  of  the  force,  or  of  the  receipt,  or  of  command- 
ing, or  of  other  accessory  facts,  shall  be  cleared  thereof 
by  the  same  judgment. 

3.  When  the  parties  appear  in  judgment,  let  the 
plaintiff  set  forth  his  appeal;  and  let  the  defendant 
defend  the  felony,  in  words  agreeable  to  the  form  of 
the  Court,  and  then  aid  himself  b\'  exceptions,  as  where 
the  appellor  is  outlawed,  or  adjudged  to  death  for  fel- 
ony, or  has  adjured  the  realm  ;  for  in  these  cases  they 
shall  not  be  bound  to  answer  such  appellors.  He  may 
likewise  abate  the  appeal  several  ways,  as  where  the 
appeal  was  not  commenced  within  the  year  and  day,  or 
not  in  the  county  where  the  felony  appears  to  have  been 
committed,  or  for  variance  between  the  appeal  made 
there  and  in  the  roll  of  the  coroner,  or  if  there  is  any 
other  male  nearer  of  blood,  who  has  a  better  right  to 
bring  the  appeal,  or  if  the  plaintiff  is  not  concerned  to 
appeal,  not  being  of  the  blood  of  the  dead  man,  nor 
having  been  of  his  homage,  nor  his  fostercliild,  nor  his 
mainpast,  nor  by  him  lifted  from  the  baptismal  font; 
or  if  there  is  homage  still  subsisting  between  the  plain- 
tiff and  defendant ;  or  if  the  fact  alleged  is  not  felony  ; 
it  may  likewise  be  abated  for  omission,  as  if  no  felony 
or  treason  is  named  in  the  appeal,  or  if  the  breaking  of 
our  peace,  or  other  words  of  the  substance  of  the  appeal 
are  omitted,  as  above  mentioned  ;  so  likewise  for  error, 
as  if  the  name  of  Reyner  is  used  for  Reginald,  as  will 
be  noticed  in  treating  of  exceptions. 


94  BRIXTON.  [I,  *U  h. 

4.  The  appeal  may  also  be  abated  for  want  of  pros- 
ecution by  the  plaintiflP,  as  when  he  has  sued  in  the 
county  at  two  courts,  and  made  default  at  the  third, 
and  this  can  be  proved  by  the  coroner's  roll  ;  in  which 
case  our  will  is,  that  if  the  defendant  can  prove  the 
nonsuit  in  the  county  to  have  been  made  before  the 
date  of  our  writ  to  remove  the  appeal,  our  Justices 
shall  commit  the  plaintiff  to  prison  for  his  nonsuit,  and 
his  pledges  shall  be  in  mercy.  But  if  the  appellor  die 
or  fall  so  grievously  sick  that  he  cannot  carry  on  his 
suit,  in  such  case  the  pledges  shall  not  be  amerced  for 
the  nonsuit,  and  we  allow  that  some  other  person,, 
whose  duty  it  is  and  who  is  capable  of  doing  it,  shall 
be  permitted  to  revive  the  suit  and  prosecute  it  until 
the  appellees  are  either  acquitted  or  condemned.  And 
if  any  of  the  appellees  surrenders  himself  before  he  is 
outlawed,  where  the  appellor  makes  default,  let  him 
be  admitted  to  bail,  as  to  our  suit,  until  the  first  gaol 
delivery,  in  cases  where  he  is  bailable.  And  although 
he  acquit  himself  as  to  our  suit,  yet  the  suit  of  any 
other,  w^ho  will  prosecute  within  the  year  and  day,  is 
not  thereby  taken  away. 

5.  The  defendant  ma}'  also  answer  by  exception  to 
the  action  in  several  ways ;  for  he  may  say  that  at 
another  time  there  was  an  appeal  in  oar  Court  between 
the  same  persons  for  the  same  felony,  and  that  he  was 
acquitted  thereof  before  such  Justices ;  and  if  he 
avouches  this  by  warrant  of  record,  and  the  record 
passes  in  his  favour,  he  shall  be  awarded  quit,  and  the 
plaintiff  to  prison.     Or  he  may  say,  that  although  he 


I,  *4:5.]  OF  HOMICIDES.  95 

committed  the  act,  yet  he  did  not  do  it  by  felony  pre- 
pense, but  by  necessity,  in  defending  himself,  or  his 
wife,  or  his  house,  or  his  family,  or  his  lord,  or  his 
lady,  from  death  ;  or  that  he  killed  the  man  in  defence 
of  our  peace,  or  by  some  mischance,  without  any 
thought  of  felony ;  in  all  which  cases,  if  proved,  the 
api)ellees  shall  have  judgment  of  acquittal. 

6.  If  the  defendant  cannot  aid  himself  by  any  excep- 
tion, let  it  be  in  his  election  to  defend  the  felony  by 
his  body,  if  the  plaintiff  be  able  to  fight,  or  by  the 
country  ;  and  if  he  will  not  put  himself  on  his  defence, 
let  him  be  put  to  penance  until  he  prays  to  do  it.  And 
according  to  the  event  of  the  battle,  or  of  the  verdict 
of  the  country,  judgment  shall  be  given.  The  punish- 
ment of  felons  who  have  committed  homicide  shall  be 
death,  with  disherison  of  their  heirs,  with  further 
punishment  if  the  occasion  requires  it. 

7.  As  to  women,  our  will  is,  that  no  woman  shall 
bring  an  appeal  of  felony  for  the  death  of  an}^  man, 
except  for  the  death  of  her  husband  killed  within  her 
arms,^  within  the  year  and  day.  For  an  infant  killed 
within  her  womb,^  she  may  not  bring  any  appeal,  no 

1  As  to  the  interpretation  of  this  phrase,  see  note  above,  p.  109, 

2  Although  neither  Glanvill  nor  Bracton  specifically  mention 
an  appeal  by  a  woman  for  the  death  of  her  unborn  child,  the  ex- 
pressions used  by  them,  '  injuria  corpori  suo  inflicta '  (Glan.  li. 
14.  c.  3.)  '  injuria  et  violentia  corpori  suo  illata'  (Brae.  148  6), 
may  include  this  crime  as  well  as  rape.  And  it  is  clear  from 
ancient  records  of  the  time  of  John  and  Ifenry  III,  that  such  an 
appeal  was  anciently  allowed,  (See  Sir  Sam.  Clarke's  Note  on 
Fleta,  li.  i.  c.  35,  Kelham's  Britton,  p,  153,)    Fleta  expressly  ad- 


^6  BRITTOK  [1, 45  J. 

one  being  bound  to  answer  to  an  appeal  of  felony, 
where  the  plaintiff  cannot  set  forth  the  name  of  the 
person  against  whom  the  felony  was  committed.  With 
regard  to  an  appeal  of  rape,  our  pleasure  is,  that  every 
woman,  whether  virgin  or  not,  shall  have  a  right  to  sue 
vengeance  for  the  felony  by  appeal  in  the  county 
court  within  forty  days,  but  after  that  time  she  shall 
lose  her  suit;  in  which  case,  if  the  defendant  confesses 
the  fact,  but  says  that  the  woman  at  the  same  time 
conceived  by  him,  and  can  prove  it,  then  our  will  is 
that  it  be  adjudged  no  felony,  because  no  woman  can 
conceive  if  she  does  not  consent. 


CHAPTER  XXV. 

Of  Appeals  of  Robberies  and  Larcenies. 

1.  With  respect  to  robberies  and  larcenies,  our  will 
is,  that  if  other  persons  desire  to  bring  an  appeal  and 
sue  for  revenge  of  such  felonies,  their  right  of  pros- 
ecution shall  continue  a  year  and  a  day,  and  that  ap- 
peals be  commenced  in  the  counties  where  the  felonies 
were  committed.  The  appeals  may  be  made  in  this 
manner.  '  John  who  is  here  appeals  Peter  who  is 
there,  that  whereas  the  same  John  on  such  a  day  in 
such  a  year  had  such  a  horse,  which  he  kept  in  his 

mits  it,  and  gives  the  form  of  accusation  (Fie.  53,  54.)  ;  and  the 
statement  in  the  text  may  liave  been  intended  as  a  correction  of 
that  author.  Possibly  it  was  considered  that  the  riglit  of  appeal 
in  this  case  was  abolished  by  Magna  Carta,  s.  24. 


I,  *46.]  OF  EOBBERIES.  97 

stable'  or  elsewhere  in  such  certain  place,  'the  same 
Peter  there  came,  and  the  same  horse  feloniously  as  a 
felon  stole  from  him,  and  took  and  led  away  against 
the  peace,  and  that  this  he  wickedly  did,  the  same  John 
offers  to  prove  by  his  body  as  the  Court  shall  award 
that  he  ought  to  do  it.'  And  if  the  horse  was  stolen 
out  of  his  custody,  or  if  he  was  robbed  of  it,  let  him 
change  the  words  of  his  appeal  according  to  the  sense 
required  ;  so  if  the  plaintiff  be  maimed,  or  in  such  other 
condition  that  battle  ought  not  to  be  joined. 

2.  Next  let  Peter  answer  and  defend  the  felony  by 
words  proper  for  defence  ;  and  then  he  may  either  de- 
fend himself  by  exceptions,  or  by  his  body  if  there  are 
no  circumstances  to  prevent  the  battle,  or  by  the 
country,  or  vouch  to  warranty,  if  he  has  any  one  to 
call.  And  if  he  pleads  that  the  horse  was  his  own, 
and  that  he  took  him  as  his  own  and  as  his  chattel  lost 
out  of  his  possession,  and  can  prove  it,  the  appeal  shall 
be  changed  from  felony  to  the  nature  of  a  trespass. 
In  this  case  let  it  be  awarded  that  the  defendant  lose 
bis  horse  for  ever  ;  and  the  like  of  all  usurpations  in 
similar  cases,  because  our  will  is  that  every  one  proceed 
rather  by  course  of  law  than  by  force. 

3.  If  the  defendant  vouches  to  warranty  by  aid  of 
our  Court,  and  the  vouchee  comes  by  aid  of  our  Court, 
or  without  such  aid,  and  enters  into  warranty,  the 
principal  plea  shall  cease,  and  the  appeal  begin  anew 
against  the  warrant,  and  according  to  his  defence  let 
judgment  be  given. 

4.  If  the  vouchee  will  not  enter  into  warranty,  the 
7 


98  BRITTOX.  [I,  *4(Wa 

vouchor  may  say  thus.  '  Peter  who  is  here,  says  that 
Thomas  who  is  there,  wrongfully  refuses  to  warrant 
the  same  horse  against  John  who  is  there,  who 
challenges  it  as  his  own  ;and  herein  wrongfully,  inas- 
much as  the  same  Thomas  sold  (or  gave  or  lent)  the 
same  horse  to  him  said  Peter  on  such  a  da}'  and  year, 
ill  such  a  place;  ami  that  he  did  so,  the  same  Peter 
offers  to  prove  by  his  body,  in  such  a  manner  as  the 
Court  shall  award  he  ought  to  prove  it.'  And  in  this 
case  it  behoves  the  vouchee  to  defend  such  contract, 
either  by  his  body,  or  by  the  country,  so  that  judg- 
ment of  death  may  pass  upon  the  one  who  is  defeated, 
and  the  successful  party  be  allowed  to  go  quit ;  and 
the  thing  challenged  shall  be  delivered  to  him  who 
challenged  it,  if  he  properly  prosecuted  his  suit,  other- 
wise it  shall  belong  to  us. 

5.  And  if  there  be  any  fraud  in  the  warranty,  as  if 
the  appellee  by  collusion  vouches  to  warrant  some 
champion  or  other  strong  man,  or  a  clerk,  who  malici- 
ously and  for  hire  enters  into  warranty,  and  the 
demandant  prays  leave  to  lay  open  the  fraud  and  the 
malice,  as  done  to  make  him  withdraw  himself  from 
the  battle  for  fear  of  the  might  of  the  champion,  or 
for  the  privilege  of  the  clergy,  inasmuch  as  the  vouchee 
being  a  clerk  intends  to  purge  himself  in  Court  Chris- 
tian, should  he  be  attainted  by  the  lay  Court,  let  him 
be  admitted  thereto ;  and  if  the  malice  be  proved,  both 
the  warrantee  and  the  warrant  shall  have  judgment 
of  deathj^and  the  demandant  shall  recover  his  demand. 

1  By  this  clause  a  severer  punishment  is  imposed  upon  the 


I,  *47.]  OF  ROBBERIES.  09 

6.  As  to  larcenies  and  robberies  committed  in  time 
of  peace,  where  the  offenders  were  not  freshly  pur- 
sued ;  the  owners  of  the  things  shall  have  their 
suit  by  appeal  of  felony  within  the  year  and  day  as  in 
other  felonies ;  but  after  that  time  their  right  of  appeal 
shall  cease,  and  the  suit  shall  be  ours.  It  is  equally  so 
within  the  year  and  day,  if  no  other  suit  is  commenced, 
and  so  in  all  manner  of  felonies.  And  if  the  demand- 
ants bring  their  suit  in  form  of  trespass,  they  shall  be 
heard,  if  they  have  not  before  commenced  their  suit 
in  form  of  felony,  in  which  case  they  cannot,  by  with- 
drawing from  their  suit,  deprive  us  of  ours.  But 
where  they  have  sued  in  form  of  trespass,  although 
our  peace  may  have  been  broken,  we  will  not  prose- 
cute. 

7.  If  any  appellee  has  withdrawn  himself,  let  him 
be  demanded  from  county  court  to  county  court,  till 
he  either  appear  or  is  outlawed.  And  when  he  shall 
have  come  into  Court,  and  the  appellor  shall  have 
appealed  him  by  words  of  felony,  and  the  appellee  de- 
fended himself  by  proper  words  of  defence,  let  him 
in  the  first  place  consider  whether  he  can  aid  himself 
by  general  exceptions,  as  to  the  person  of  the  judge, 
that  he  has  not  authority  to  hear  and  determine  the 
appeal,  which  exception  may  be  true  in  many  ways, 
as  if  the  act  wherewith  the  defendant  is  charged  was 

colluding  vouchee  than  was  before  in  use.  According  to  Brac- 
ton  and  Fleta,  the  hireling  champion  was  to  lose  a  foot  and  hand. 
And  according  to  Fleta,  the  clerk  was  to  be  imprisoned  and  ran- 
somed.    (Brae.  151  b;  Fie.  55,  56.) 


100  BRITTON.  [T,  *47  h. 

not  done  within  his  jurisdiction,  and  this  exception 
holds  good  in  counties,  or  where  the  judge  is  not 
authorised  thereto  by  our  writ.  Or  he  may  except  to 
the  person  of  the  appellor,  which  may  also  be  in  sun- 
dry ways;  or  to  his  own  person.  If  no  objection  lies 
against  any  of  the  persons,  then  let  him  see  whether 
he  can  aid  himself  by  general  exceptions  to  abate  the 
appeal ;  and  if  he  cannot,  let  him  then  aid  liimself  by  ex- 
ceptions to  the  action,  as  that  the  thing  challenged  is  not 
of  the  value  of  twelve  pence ;  and  many  other  exceptions 
may  be  used.  If  he  cannot  avail  himself  of  any 
exception,  and  has  no  warrant  to  vouch,  he  may 
lastly  defend  himself  by  his  body,  or  by  the  country. 
And  if  he  be  attainted,  let  him  have  judgment  of 
death. 

8.  The  appellor  may  afterwards  proceed  against  the 
receivers  and  the  others  for  aiding  and  consenting, 
whosoever  they  are.  And  when  one  man  is  appealed 
by  sev^eral,  or  several  by  one,  and  battles  are  to  ensue, 
the  battles  shall  not  take  place  at  one  time,  but  at 
different  times.  Nevertheless  the  felon's  wife  may 
plead,  that  although  she  was  privy  to  the  crime  of  her 
husband,  yet  she  neither  couUl  nor  ought  to  accuse  him 
as  long  as  she  was  under  coverture ;  but  this  answer 
must  not  be  allowed  in  too  general  a  manner  to  such 
wives  to  excuse  them  from  acquitting  themselves  of  the 
fact,  and  of  the  consent,  by  the  country  ;  for  it  mav 
often  happen  that  the  wives  of  felons  hold  the  persons 
attacked  whilst  their  husbands  kill  them,  and  in  such 
case  both  of  them  are  guilty  of  the  felony  ;  and  as  to 


I,  *48.]  OF  ROBBERIES.  101 

the  concubines  of  felons,  they  shall  in  no  wise  be  allowed 
to  excuse  themselves  by  coverture.  If  it  appears  that 
any  woman  who  is  adjudged  to  death  for  this  or  any 
other  felony  be  big  with  child,  then  execution  of  the 
judgment  shall  be  delayed  until  the  child  be  born.^ 

9.  Felons,  in  this  as  in  all  other  felonies,  may  have 
accomplices,  receivers,  and  abettors,  whom  they  may 
appeal  for  the  sake  of  prolonging  their  own  lives ;  and 
if  they  will  become  provers,  then  let  the  coroner  go  to 
them,  and  hear  the  confession  of  their  own  felonies,  and 
cause  such  confessions  to  be  enrolled,  and  also  their 
appeals,  together  with  their  names  and  the  names  of 
the  appellees.  And  if  the  provers  make  the  justice  of 
their  appeals  appear,  and  have  lied  in  no  particular, 
then  they  shall  have  our  pardon  of  life  and  limb  where 
we  shall  see  meet  because  they  have  fought  for  our 
peace.''  But  our  will  is,  that  from  the  time  any  such 
prover  has  failed  of  his  appeal,  he  shall  be  no  more 
heard  against  any  other  whom  he  has  appealed,  but 
all  others  appealed  by  him  shall  be  adjudged  quit  as  to 
his  appeal,  and  the  prover  shall  be  condemned  to  death  ; 

1  Braoton  derives  this  rule  of  humanity  from  the  Eoman  Law, 
citing  a  passage  in  Dig.  lib.  48,  tit.  19.  1.  3. 

'^  The  commentator  in  MS.  N.  states  that  it  was  considered  that 
an  approver  had  not  merited  pardon  until  he  had  made  good  his 
appeal  by  battle  against  seven  accomplices  ;  and  that  by  some 
the  number  was  put  at  nine  ;  and  that  even  then  he  was  not  to 
be  permitted  to  remain  in  the  country,  but  to  be  exiled,  or  to 
take  the  cross  in  the  Holy  Land.  The  latter  point  is  confirmed 
by  Bracton  :  '  Vitam  habeat  et  membra,  sed  in  regno  remanere 
non  poterit,  etiam  si  velit  plegios  invenire.'    Brae.  153  b. 


102  BEITTOls .  [I,  *48  b. 

and  if  the  persons  appealed  are  suspected,  let  them 
answer  at  our  suit,  and  clear  themselves  of  the  slander  ; 
but  if  they  are  of  good  fame,  then  we  permit  them  to 
be  let  out  by  sufficient  mainprise  as  to  our  suit  until 
the  eyre  of  the  Justices,  or  until  we  shall  take  proceed- 
ings against  them.  The  like  liberty  shall  be  granted 
to  those  who  are  indicted  of  any  felony  through  hatred, 
and  by  procurement  of  their  enemies ;  which  hatred 
shall  be  convicted  by  inquest  by  virtue  of  our  writ  De 
odio  et  atia,  saving  to  every  one  his  suit. 

10.  As  to  pigeons,  fish,  bees,  or  other  wild  animals, 
found  in  a  wild  condition,  we  ordain  that  no  man  have 
judgment  of  death  on  account  of  them  ;  but  otherwise 
if  they  have  been  feloniously  stolen  out  of  houses,  or 
if  they  are  tame  beasts,  out  of  parks.  And  no  appeal 
shall  lie  where  the  damage  is  under  twelve  pence,  nor 
in  any  case  which  shall  be  found  by  examination  of 
the  Justices  to  be  rather  trespass  than  felony ;  as 
where  the  appeal  is  made  of  a  wound,  and  it  appears 
to  be  only  a  bruise  or  scratch. 


I,  *49.]  OF  MAYHEM.  103 


CHAPTER  XXYI. 
Of  Appeals  of  Mayhem. 

1.  Concerning  mayhems,  Ave  are  content  that  the 
maimed  shall  sue  by  appeals  of  felony  against  the 
offenders ;  and  when  any  appellee  is  convicted  of  such 
felony,  and  brought  up  for  judgment,  let  the  judgment 
be  this,  that  he  lose  the  like  member  as  he  has  destroyed 
of  the  plaintiff ;  and  if  the  plaint  be  made  against  a 
woman  who  has  depriv^ed  a  man  of  his  members,  she 
shall  have  judgment  to  lose  a  hand,  being  the  member 
Avherewith  she  committed  the  offence.  In  this  felony  no 
prosecution  shall  lie  at  our  suit  with  a  view  to  the 
judgment  of  loss  for  loss  ;  but  if  the  appeal  be  abated, 
the  felons  shall  answer  for  such  felonies,  and  if  they 
are  attainted  at  our  suit,  they  shall  be  awarded  to 
prison,  and  ransomed  thence  for  breaking  our  peace. 
And  our  will  is,  that  nothing  be  deemed  a  mayhem 
unless  a  member  be  lost,  whereby  a  man  is  rendered 
less  able  to  fight ;  as  the  loss  of  an  eye,  a  hand,  or  a 
foot,  or  fracture  of  the  skull  bone,  or  loss  of  the  fore 
teeth ;  but  the  loss  of  the  molar  teeth,  or  of  an  ear, 
or  of  the  nose,  is  not  accounted  a  mayhem,  but  a  dis- 
figurement only. 

2.  Appeals  of  felony  may  also  be  brought  for  wounds, 
and  for  imprisonment  of  freemen,  and  for  every  other 
enoVmous  trespass ;  but  for  avoiding  the  perilous  risk 


104  BKITTON.  [I,  *49  h. 

of  battle,  it  is  better  to  proceed  by  our  writs  of  trespass 
than  by  appeals  ;  for  if  variance  be  found  between  the 
appeal  as  entered  in  the  roll  of  the  coroner  and  as  set 
forth  in  the  county  court,  or  if  there  has  been  any 
omission,  or  any  interruption  of  the  county  courts, 
or  other  error,  the  plaintiff  shall  be  commanded  to 
prison  for  not  having  performed  what  he  bound  himself 
to  do,  and  shall  make  satisfaction  to  the  defendant,  and 
afterwards  to  us.  But  if  the  appeal  be  maintained, 
and  the  defendant  have  put  himself  for  good  or  ill  on 
the  country,  and  the  jury  say  that  he  is  guilty,  the 
same  judgment  shall  be  given  against  him  as  would 
have  been  in  case  he  had  been  vanquished  in  battle,  to 
wit,  wound  for  wound,  imprisonment  for  imprisonment, 
and  trespass  for  trespass.  But  in  such  cases  our  will 
is,  that  the  execution  of  the  judgment  be  so  far  miti- 
gated, that  the  appellees  be  sent  to  prison,  and  there 
remain  in  irons  till  they  have  made  satisfaction  to  the 
plaintiffs ;  and  they  shall  afterwards  be  punished  for 
breach  of  our  peace. 

3.  The  like  judgment  shall  result  where  the  proceed- 
ing is  by  our  writ  of  trespass.  But  some  trespasses 
deserve  a  greater  punishment,  as  trespasses  committed 
in  time  of  peace  against  knights  or  other  honourable  per- 
sons by  ribalds  or  other  worthless  people  ;  in  which  case 
our  pleasure  is,  that  if  a  ribald  be  attainted  at  the  suit 
of  any  knight  of  having  feloniously  struck  him  without 
any  provocation  from  the  knight,  the  ribald  shall  lose 
the  hand  wherewith  he  offended.  We  have  said,  in 
time  of  peace,  because  as  to  injuries  done  at  tourna- 


I,  *50.]  OF  ATTACHMENTS.  105 

raents  and  jousts,  or  such  warlike  feats,  we  will  not  in- 
terpose, unless  the  acts  be  done  in  our  presence. 

4.  Our  will  also  is,  that  the  articles  and  penalties  or- 
dained by  us  and  our  council, -and  proclaimed  to  be  put 
in  force  for  a  certain  time  with  regard  to  strangers,  be 
observed  and  executed  according  to  such  ordinances. 


CHAPTEK  XXYII. 

Of  Attachments^  and  other  proceedings  in  actions  of  tres- 
pass /  and  of  the  conclusion  of  the  Eyre. 

1.  We  have  already  treated  of  the  manner  of  convict- 
ing offenders  for  breach  of  our  peace  by  appeals  and 
presentments ;  we  must  now  show  how  the  breach  of  our 
peace  is  to  be  convicted  by  way  of  trespass.  In  the  first 
place,  when  any  one  has  obtained  our  writ  of  trespass 
for  a  mayhem,  imprisonment,  or  wound,  or  for  anything 
stolen  or  robbed  or  in  anv  other  manner  wrongfullv  car- 
ried  away  or  detained,  or  for  breaking  parks,  or  for  bat- 
tery, or  for  other  things  committed  against  our  peace, 
or  ag-ainst  a  bailiff  for  refusing  to  render  account  to  his 
lord,  let  him  begin  b}'^  delivering  his  writ  to  the  sheriff ; 
and  afterwards  let  him  find  two  pledges  distrainable  to 
the  sheriff  to  prosecute  his  plaint.  A.nd  let  the  sheriff 
cause  the  trespassers  to  be  distrained  by  their  cattle  or 
by  their  chattels,  and  afterwards  adjourn  them  to  be 
in  our  Court  at  the  day  prefixed  according  as  shall  be 
contained  in  our  writs,  to  answer  to  the  plaintiffs  for 


106  BRITTOK  [I,  *50  I. 

the  trespasses  contained  in  the  writs ;  so  that  every 
defendant  may  have  notice  of  his  adversary's  case. 

2.  And  if  the  writs  are  returnable  in  a  franchise, 
and  the  bailiffs  will  not  execute  our  precept  unless  the 
plaintiff  will  find  them  pledges  distrainable  to  them 
in  such  case  the  sheriff  may  make  a  return  in  our  Court, 
that  he  sent  to  the  bailiffs  of  the  person  having  the 
franchise  of  return  of  writs  to  do  execution,  but  that 
they  have  nothing  done ;  and  we  will  immediately 
command  the  sheriff  that  he  omit  not  by  reason  of  the 
franchise  to  enter  and  do  execution.  And  the  plaintiff, 
if  he  will,  may  proceed  against  the  bailiffs  to  recover 
his  damages  ;  for  it  would  have  been  allowable  for  the 
plaintiffs  to  have  found  sureties  to  prosecute  their 
plaints  in  our  Chancery  without  prejudice  to  any  one; 
wherefore  the  surety  found  to  the  sheriff  on  every 
writ  is  sufficient. 

3.  If  the  defendants  suffer  distresses  to  be  taken  into 
the  hands  of  the  sheriffs,  the  sheriffs  may  return  that 
they  have  distrained  them  by  such  cattle  or  by  such 
chattels ;  and  if  the  defendants  do  not  thereupon  come 
into  court,  then  it  must  be  distinguished  whether  the 
plaint  is  in  our  Court,  or  elsewhere,  as  in  the  county,  or 
in  a  court  baron  or  other  freeholder's  court ;  and  if  in 
our  Court  before  us  or  before  our  Justices,  then  we  will 
that  no  default  be  adjudged  in  any  plea  until  after  the 
fourth  day.  If  they  do  not  come  within. the  fourth 
day,  and  are  not  essoined,  and  the  plaintiff  offers  him- 
self and  demands  judgment  for  the  default,  the  great 
•distress  shall   be  awarded,  and  the  sheriff    shall   be 


I,  *51.]  OF  ATTACHMENTS.  107 

charged  to  answer  unto  us  for  the  issues  of  the  first 
distress;  and  the  Justice  shall  adjourn  the  defendant 
to  be  in  court  on  another  day  ;  at  which  day  no  essoin 
shall  be  allowed  him,  for  we  forbid  the  allowing  of  an 
essoin  in  any  case  after  default,  until  such  default  be 
cleared  in  our  Court,  And  if  upon  this  day  the  defend- 
ants make  default,  the  issues  shall  be  forfeited  to  us, 
and  the  sheriff  shall  be  charged  to  answer  unto  us  for 
the  same,  and  these  distresses  shall  be  continued  from 
day  to  day  until  they  appear  and  answer. 

4.  If  the  plea  be  in  any  other  court  than  ours,  and 
the  defendants  have  neither  appeared  nor  caused  them- 
selves to  be  essoined,  we  will  not  that  judgment  be  de- 
layed until  the  fourth  day  ;  but  immediately  on  the 
first  day  let  it  be  awarded  by  the  suitors,  that  such 
distresses  be  detained,  and  more  be  seized,  and  so  from 
court  to  court.  If  the  sheriff  or  the  bailiff  has  not  exe- 
cuted the  precept,  let  him  be  in  mercy. 

5.  The  same  process  of  distress  is  to  be  awarded  in 
defaults  after  essoins  in  a  writ  of  trespass  committed 
against  our  peace ;  but  in  an  attachment  of  felony  no 
distress  runs  excepting  against  the  body,  if  it  can  be 
found.  And  if  in  the  above  cases  the  sheriff  return, 
that  the  trespassers  have  nothing  in  his  bailiwick  where- 
by they  may  be  attached,  it  shall  be  awarded  that  he 
take  their  bodies  ;  and  if  he  return  that  the  bodies  are 
not  found  in  his  bailiwick,  then  let  it  be  ordered  by  our 
writ  of  judgment,  that  they  be  demanded  from  county 
court  to  county  court  until  they  be  outlawed,  if  they 
do  not  appear. 


108  BRITTON.  [T,  *51  h. 

6.  And  when  any  person  who  has  been  distrained 
shall  come  into  court,  and  cannot  clear  his  default,  let 
him  be  straightway  adjudged  in  our  mercy  for  his  de- 
fault; and  if  there  be  several  defaults,  let  there  be 
several  amercements.  And  if  any  one  be  attached  by 
pledges  and  make  default,  let  the  pledges  be  summoned 
to  hear  their  judgment,  for  not  luiving  him  in  court 
for  whom  they  were  pledged.  At  which  day  if  the}" 
do  not  appear,  or  cannot  deny  their  being  pledged,  they 
also  shall  be  in  our  mercy  ;  but  if  they  will  deny  the 
plevin,  the  debate  shall  be  between  them  and  the 
sheriff. 

1.  When  the  defendants  have  appeared  in  court, 
and  heard  the  plaintiffs  count  against  them,  and  have 
defended  themselves  by  proper  words  of  defence,  they 
may  then  aid  themselves  by  exceptions  general  or 
special ;  and  first,  by  exceptions  to  the  judge  ;  after- 
wards to  the  person  of  the  plaintiff  or  to  their  own 
person,  as  shall  be  mentioned  nmongst  exceptions  in 
the  writ  of  right ;  ^  or  they  may  except  to  the  writ,  as 
where  a  writ  is  sued  out  into  any  other  county  than 
where  the  fact  is  alleged  to  have  been  committed,  or 
for  a  fault,  error,  or  omission  therein. 

8.  If  there  be  no  dilatory  exception,  let  them  an- 
swer to  the  action  ;  to  which  they  may  sa\'  that  they 
were  previously   acquitted    of   the  same   trespass,    as 

^  The  proposed  chapter  on  Exceptions  in  the  Writ  of  Right  is 
not  contained  in  the  Treatise  as  it  now  exists  ;  but  some  further 
observations  upon  exceptions  to  the  person  may  be  found  in  book 
ii.  chap.  18. 


I,  *52.]  OF  ATTACHMENTS.  109 

against  the  same  plaintiff  ;  and  if  -this  be  verified  by 
record,  let  judgment  be  given  accordingly.  Or  the 
defendants  may  say  that  the  parties  made  accord  of 
this  trespass  ;  and  if  the  plaintiff  deny  it,  let  the  truth 
be  inquired  by  the  country.  And  if  the  plaintiffs  will 
not  agree  to  the  accord,  let  the  defendants  be  awarded 
quit,  and  the  plaintiffs  in  mercy. 

9.  With  regard  to  receiv-ers  of  trespassers,  com- 
manders and  accessories,  there  is  not  as  yet  any  pun- 
ishment ordained,  *except  only  against  the  principal 
trespassers.  And  if  the  plaintiff  complains  of  a  damage 
done  to  himself  and  to  his  men,  or  only  on  behalf  of 
his  men,  the  defendant  may  say  that  every  man  has  a 
separate  action  ;  and  in  such  cases  we  will  that  the 
plaintiffs  recover  nothing  by  their  plaints  beyond  the 
damages  which  they  can  reasonably  show  they  have 
sustained  by  the  loss  of  the  services  of  their  men,  who 
have  been  beaten  or  imprisoned,  or  so  treated  as  to  be 
incapable  of  service.  And  their  action  shall  not  be 
brought  until  after  conviction  of  the  trespass  commit- 
ted against  the  servants.^ 

10.  If  the  sheriff  return  that  the  defendant  is  a  clerk, 
and  refuses  to  submit  to  his  jurisdiction,  and  that 
he  has  no   lay  fee  in   his   bailiwick  whereby   he  can 

1  According  to  Bracton,  an  action  might  be  brought  by  the 
master  for  the  insult  and  disgrace  inflicted  upon  him  in  the  per- 
son of  his  servant,  althougli  no  loss  of  service  followed  ;  and  even 
though  the  servant  withdrew  from  his  action,  or  refused  to 
prosecute,  the  master  might  himself  sue.  (Brae.  115.)  The 
change  of  law  is  indicative  of  an  increase  of  personal  inde- 
pendence. 


110  BKITTON.  [I,  *52  h. 

be  distrained,  let  his  ordinary,  as  the  archbishop  or 
bishop,  be  commanded  by  our  writ  that  he  cause  such 
a  one  his  clerk  to  appear.  And  if  he  does  not  produce 
him  at  the  day  named  in  our  writ,  let  the  bishop  be 
summoned  to  answer  why  lie  did  not  produce  him  at 
our  precept.  And  if  the  bishop  neglect  our  summons 
let  him  be  attached  to  come  by  distress,  and  if  he  does 
not  come  at  the  first  distress,  let  the  great  distress  as 
above  said,  proceed  against  him  until  he  shall  come ; 
and  when  he  has  appeared  in  court,  if  he  cannot  clear 
his  default,  let  him  be  amerced, 

■'^ll.  There  are  however  several  actions  of  trespass 
which  require  greater  expedition,  as  trespasses  com- 
mitted against  us  or  our  consort,  or  our  children,  or 
against  foreign  persons,  as  solemn  ambassadors  or  alien 
friends,  or  against  our  officers,  or  against  merchants,  or 
against  those  who  have  taken  the  cross  ;  in  which  cases 
no  formality  of  attachment  shall  be  required,  but  the 
bodies  of  the  defendants  shall  be  immediately  attached, 
so  that  the  sheriff  shall  have  them  to  answer  on  the 
first  day. 

12.  There  are  some  actions  also  pleadable  by  like 
distresses  as  in  trespass,  where  no  outlawry  ensues,  and 
which  are  more  dilatory  by  a  day,  and  commence  by 
summons ;  as  a  plea  of  debt,  of  covenant,  in  case  of 
warranty  of  charter,  waste,  sale,  destruction  of  houses 
or  woods  or  other  freehold,  and  ])leas  of  naifty,  and 
several  others, 

IS,  Whatever  may  be  pleaded  in  the  county  court 
may  also  be  pleaded  in  the  eyre  of  the  Justices ;  as  pleas 


I,  *53.]  OF  ATTACHMENTS.  Ill 

de  vetito  namio,  of  debt,  of  naifty,  of  wards,  and  mar- 
riages ;  also  presentments  made  in  the  sheriff's  tourns 
and  in  views  of  frankpledge  ;  and  also  pleas  concern- 
ing false  weights  and  measures,  and  many  others, 
which  are  pleadable  before  our  Justices  assigned  to 
take  assises  *in  the  county,  and  writs  pleadable  before 
our  Justices  of  the  Bench  at  Westminster. 

14.  If  any  presentment  upon  the  articles  of  our 
Crown  remain  uncommenced  or  undetermined,  then  let 
the  Justices,  unless  they  have  a  good  and  reasonable 
excuse,  be  punishable  at  our  discretion.  When  the 
presentments  on  the  articles  of  the  eyre  are  determined, 
the  pleas  of  land  shall  be  immediately  adjourned  before 
them  to  another  county ;  or  if  the  eyre  is  not  to  be 
continued,  they  shall  be  adjourned  into  the  Bench,  in 
the  presence  of  the  parties.  The  amercements  are 
immediately  to  be  assessed,^  and  the  estreats  sent  to 
our  Exchequer;  the  like  as  to  fines  and  the  chattels  of 
felons  and  fugitives ;  and  the  names  of  the  fugitives  shall 
be  enrolled  in  two  rolls,  whereof  one  shall  remain  with 
the  coroners  and  the  sheriff"  of  the  county  under  the 
seal  of  the  Justices  thereto  attached,  and  Such  persons 
are  to  be  demanded  by  their  names  at  the  first  county 
court  after  the  eyre,  to  come  and  submit  to  justice  in 
our  Court,  and  so  from  county  court  to  county  court, 
until  the}'^  appear  or  be  outlawed.  The  other  roll, 
together  with  all  the  rolls  of  the  evre,  shall  be  trans- 
mitted  to  our  Exchequer,  and  safely  kept  in  our  Treas- 
ury. 

^  See  before,  c.  ii.  s.  4. 


112  BRITTOK  [I,  *53  h. 

15.  If  the  suitors  of  the  county  be  attainted  of  false 
judgment,  or  have  made  any  other  error  in  the  usage 
of  the  law,  the  county  shall  be  in  our  mercy.  The 
hundreds  also  for  the  defaults  of  the  suitors,  and  the 
townships  for  divers  defaults ;  and  the  amercements 
shall  be  assessed  according  to  our  Statutes  of  West- 
minster. And  afterwards  let  the  sheriff  be  commanded 
to  aid  the  presentors  by  causing  the  neighbours  to  raise 
reasonable  contributions  towards  their  expenses. 


CHAPTER  XXVIII. 

Of  Distresses. 

1.  In  counties  we  have  a  twofold  court ;  ^  one  of 
the  pleas  of  our  peace,  which  is  held  by  our  coroners 
and  the  suitors,  and  of  which  the  coroners  only  have 
record  ;  we  have  also  a  court  of  the  nature  of  a  court 
baron,  in  which  the  suitors  are  judges,  and  have  no 
record  out  of  their  court,  except  by  consent  of  the 
parties.  For  in  their  courts  neither  party  may  deny 
what  he  has  before  pleaded  ;  but  if  the  plea  be  removed 

1  This  description  of  the  several  branches  of  the  county  court 
is  somewhat  obscure.  The  twofold  division  probably  applies  to 
the  original  or  ordinary  jurisdiction  of  tlie  county  court  on  the 
one  hand,  and  the  derivative  jurisdiction  bj' virtue  of  the  King's 
writ  on  the  other.  The  first  is  again  subdivided  into  the  crim- 
inal jurisdiction,  in  which  the  coroner  took  part,  and  the  juris- 
diction in  civil  actions  commenced  by  plaint,  where  the  process 
was  similar  to  that  in  courts  baron.     (See  post,  s.  20,  and  c.  29. 

8.1.) 


I,  *54.]  OF  DISTRESSES.  113 

out  of  the  court  of  such  suitors,  either  of  the  parties 
may  deny  the  record.  But  for  that  purpose  he  must 
have  suit  ready  at  hand,  to  wit,  such  a  one  his  free 
man  who  was  present  at  such  court,  and  saw  and  heard 
that  the  plea  was  so  pleaded,  which  he  is  ready  to  prove 
by  his  body,  in  whatever  manner  the  Court  shall  award 
that  he  ought  to  prove  it.  We  have  also  our  court  there, 
with  the  sheriff  of  the  county  for  our  Justice,  whenso- 
ever we  command  our  sheriffs  by  our  writs,  that  for 
purposes  of  justice  they  cause  any  plaint  to  be  brought 
before  them,  whereof  the  sheriff  with  the  suitors  bears 
record. 1 

2.  And  whereas  they  may  be  entrusted  with  the  de- 
termination of  several  kinds  of  writs,  in  the  first  place 
we  will  that  they  understand  the  nature  of  the  plea  of 
distress ;  which  plea  we  do  not  allow  any  one  to  deter- 
mine without  our  writ.  But  to  the  intent  that  beasts 
and  other  distresses  may  not  be  too  long  detained  or 
impounded,  and  to  avoid  further  damage,  we  have 
granted  that  the  sheriff  by  simple  plaints  and  by 
pledges  may  deliver  such  distresses,  and  determine  the 

1  The  sheriff,  when  sitting  by  virtue  of  the  King's  writ,  is 
treated  by  our  Author  as  the  King's  Justiciary,  and  as  having 
tlie  power  of  record  incident  to  that  office.  See  before,  c.  1.  s.  7  ; 
and  farther  on,  li.  ii.  c.  30.  s.  8.  See  also  Brae.  117.  Hengham 
Mag.  c.  iv.  pp.  20,  21.  It  was  decided  in  later  times,  tliat  the 
county  court,  though  sitting  by  virtue  of  the  King's  writ  of  J^ia- 
ticies,  or  De  Nativo  habendo,  had  not  the  powers  of  a  court  of 
record.  Y.  B.  2  H.  IV.  24  ;  Brooke,  Abr.  Faiix  Imprisonment, 
30  ;  Dalton,  OfSc.  Vicecom.  p.  158  b;  Jentleman's  Case,  6  Coke. 
Rep.  11. 


114  BRITTON.  [T,  *54  h. 

taking  without  regard  to  the  vee  ^  and  tortious  detaining, 
if  the  plea  is  not  removed  by  our  writ  into  the  Bench, 
because  vee  is  an  article  of  the  breach  of  our  peace. 
The  substance  of  this  plea  consists  in  two  things,  to- 
wit,  in  the  taking  and  in  the  detaining;  and  forasmuch 
as  one  may  take,  and  another  detain,  it  is  necessary 
that  both  be  named  in  our  writ.  And  because  he  who 
wrongfully  detains,  does  a  greater  injury  than  he  who 
wrongfully  takes,  the  principal  burden  of  the  answer 
shall  in  such  case  fall  upon  the  detainers.  Naam  ^  is  a 
general  term  for  cattle,  chattels,  and  for  all  other 
movable  things  which  may  be  taken  by  way  of  dis- 
tress. 

3.  When  any  one,  finding  himself  aggrieved  by  a 
wrongful  detaining  of  his  cattle  or  of  his  chattels,  shall 
have  obtained  our  writ  to  his  sheriff,  and  found  pledges 
to  prosecute  his  plaint,  let  the  sheriff  immediately  go 
or  send  some  known  bailiff  to  the  place  where  the 
plaintiff  says  the  distress  is  detained  ;  and  when  the 
sheriff  or  his  bailiff  come  there,  let  him  demand  a  view 
of  the  beasts  or  chattels  whereof  the  plaint  is  made. 
And  if  he  cannot  have  a  view  by  reason  of  disturbance 
from  any  detainer,  or  other  person,  whereby  he  cannot 
discharge  the  duty  of  his  office,  let  him  immediately 
raise  the  hue  and  cry,  and  cause  all  the  disturbers  to 

1  The  vee  (from  the  old  French  vier  or  veer,  Latin  vetare')  was 
the  refusal  to  deliver  the  distress  upon  offer  of  surety.  See  be- 
low, s.  6. 

■2  Naam  (Anglo-Saxon,  name,  from  nimaii,  Grerman,  nehmen,  to 
take),  a  seizure,  or  taking. 


I,  *55.]  OF  DISTRESSES.  115 

be  apprehended  and  kept  safely  in  prison,  so  that  they 
may  not  be  set  at  liberty  without  our  leave,  for  the  dis- 
turbance of  our  peace.  And  if  the  beasts  are  shut  up 
within  a  house  or  within  pound,  or  if  they  are  driven 
out  of  the  county,  or  if  the  bailiff  meet  with  other 
disturbance,  let  him  immediately  cause  beasts  of  the 
deforcer  to  be  taken  to  the  extent  of  double  the  value 
by  way  of  withernam,^  and  keep  that  distress  without 
permitting  it  to  be  replevied,  until  the  distress  eloined 
be  brought  back. 

4.  If  the  taker  or  detainer  admit  the  bailiff  to  view, 
and  avow  the  thing  distrained  to  be  his  property,  so 
that  the  plaintiff  has  nothing  therein,  then  the  juris- 
diction of  the  sheriff  and  bailiff  ceases.  And  if  the 
phiintiff  is  not  a  villain  of  the  deforcer,  let  him  im- 
mediately raise  the  hue  and  cry  ;  and  at  the  tirst  county 
court  let  him  sue  for  his  chattel,  as  being  robbed  from 
him,  by  appeal  of  felony,  if  he  thinks  fit  to  do  so. 

5.  When  the  sheriff  and  the  bailiffs  have  had  the  view 
of  the  distress  without  disturbance,  the  distress  shall  be 
delivered  to  the  plaintiff  ;  and  the  sheriff  or  bailiff 
shall  give  a  day  to  the  parties  at  the  next  county  court. 
At  which  day  no  essoin  shall  be  allow^ed  against  the 
plaintiff,  since  this  suit,  like  disseisin,  is  nearly  con- 
nected with  robbery ;  but  if  the  defendant  makes 
default,  the  distress  shall  be  adjudged  to  the  plaintiff, 
and  the  distrainor  in  mercy.  If  the  plaintiff  does  not 
come  at  the  day  nor  cause  himself  to  be  essoined,  and 
the  defendant  offers  himself  and  demands  judgment  of 

1  Withernam,  Anglo-Saxon,  unuer-name,  a  counterdistress. 


116  BRITTOK  [f,  *55  I. 

the  nonsuit  of  the  plaintiff,  let  it  be  awarded  that  the 
defendant  have  the  distress  returned,  and  that  the 
plaintiff  and  his  pledges  to  prosecute  be  in  mercy. 

6.  When  both  parties  appear  in  court,  the  plaintiff 
shall  set  forth  his  plaint,  that  '  Avhereas  he  had  his 
beasts,  to  wit  two  oxen,'  or  two  cows,  or  two  horses, 
or  such  chattels,  according  to  the  nature  of  the  distress, 
'  on  such  a  day  in  such  a  year  of  our  reign,  in  such  a 
township,'  or  in  such  a  certain  place,  '  there  came 
such  an  one  (the  detainer)  and  took  the  same  beasts 
there  found,'  or  '  caused  them  to  be  taken  by  such  a 
one,'  or  '  by  other  persons  unknown,  and  drove  them 
away,'  or  '  caused  them  to  be  driven  away,  from  the 
same  place,  to  another  place,  and  there  came  the  plain- 
tiff, and  demanded  to  have  his  cattle  quietly,  and  could 
not  have  them,  and  afterwards  tendered  security  for 
the  sake  of  peace,  and  offered  pledges  to  appear  in  his 
court  or  elsewhere  to  stand  to  justice,  if  he  had  any 
demand  to  make  against  him,  and  yet  he  wrongfully 
against  gage  and  pledge  detained  them,  or  caused  them 
to  be  detained,  until  the  same  beasts  were  delivered  by 
the  sheriff ;  this  wrong  did  he  to  him,  and  this  distress 
against  gage  and  pledge  wrongfully  him  refused,' — and 
if  he  did  him  any  other  injury,  it  should  be  assigned, — 
'to  his  damages  of  a  hundred  shillings,' — or  more  or 
less,  according  to  what  he  shall  have  suffered, — '  against 
the  peace,  and  if  the  defendant  do  deny  the  same, 
he  has  good  suit.' 

7.  Then  let  the  defendant  answer,  and  defend  '  the 
wrong  and  force,  and  the  breaking  of  the  peace,  and  the 


I,  *5r..]  OF  DISTRESSES.  117 

tortious  taking,  and  the  tortious  detaining,  and  the 
refusal  of  the  beasts  aforesaid,  and  the  damage  of  a 
hundred  shillings,'  or  more  or  less  as  the  plaintiff  shall 
have  counted  against  him,  '  and  this  he  will  defend 
where  and  when  he  ought  so  to  do.' 

8.  When  he  has  thus  defended  himself,  let  him  try 
if  he  can  aid  himself  by  exception  against  the  judge ;  as 
for  example,  if  the  detaining  was  not  done  in  the  juris- 
diction of  the  judge,  and  afterwards  by  exception  against 
the  person  of  the  plaintiff,  and  afterwards  against  his 
own  person,  and  then  to  the  writ,  as,  if  the  writ  was 
obtained  before  the  day  of  the  taking  mentioned  in 
his  plaint.  Also,  if  there  are  several  plaintiffs,  who 
are  named  together  in  the  writ,  and  they  have  com- 
plained in  common  where  the  cause  of  action  is  several, 
the  writ  fails.  He  may  afterwards  aid  himself  by  ex- 
ceptions to  the  action ;  and  he  may  answer  to  the  tak- 
ing in  several  ways,  and  may  defend  the  vee  by  his  law  ; 
but  if  the  plea  is  removed  out  of  the  county  court, 
this  proceeding  shall  not  be  allowed  to  the  defendant ; 
but  although  he  can  justify  the  taking,  nevertheless  he 
shall  answer  concerning  the  vee  and  the  tortious  de- 
tainer, which  is  an  article  committed  against  our  peace, 
of  which  none  may  acquit  himself  by  his  law,  for  to 
refuse  gage  and  pledge  is  a  total  renunciation  of  our 
peace. 

9.  Or  he  may  avow  the  taking  and  detaining  as 
rightful,  '  for  that  on  the  same  day  he  found  the  said 
beasts  in  his  meadow,'  or  in  his  corn  or  elsewhere,  '  to 
his,  damage,  in  such  a  vill,  and  he  according  to  the 


118  BKITTON.  [I,*56  5. 

law  and  custom  of  the  realm  caused  those  beasts  to  be 
driven  to  his  house  in  the  same  vill,  and  there  detained 
them  until  due  amends  should  be  made  him  for  the 
damage  aforesaid,  or  until  pledges  should  1)0  tendered 
to  him  for  a  reasonable  satisfaction,  so  that  he  nevei* 
refused  him  the  beasts  in  any  other  manner ; '  and  of 
this  he  may  tender  averment  by  the  county. 

10.  To  this  the  plaintiff  may  answer  by  way  of 
replication,  and  say  that  he  '  tendered  him  pledges  to 
make  satisfaction,  and  to  appear  in  his  *court,  and  to 
make  him  due  amends  by  the  award  of  neighbours; 
but  he  not  complying  with  reason  and  right,  refused 
him  the  beasts,  as  he  hath  before  alleged  in  his  plaint.' 
To  this  the  defendant  may  answer  by  way  of  triplica- 
tion, and  admit  that  the  plaintiff  tendered  him  pledges, 
but  not  distrainable  to  him  ;  and  if  the  plaintiff  cannot 
prove  the  contrarv,  let  the  distress  be  awarded  back 
to  the  defendant,  and  the  plaintiff  in  mercy  for  his 
wrongful  ])laint. 

11.  And  also  as  to  what  the  defendant  sa3's,  that 
he  took  the  beasts  doing  him  damage,  it  may  be 
answered  by  the  plaintiff,  that  he  tendered  pledges  to 
make  amends  for  his  damages,  but  when  the  damage 
was  to  have  been  shown,  the  defendant  could  not  show 
or  assign  any  damage,  and  thereof  he  may  tender 
averment ;  or  he  may  say  that  concerning  satisfaction 
for  those  damages,  they  referred  themselves  to  the 
arbitration  of  such  and  such  persons,  who  awarded 
that  no  damage  was  done  ;  or  that  he  made  iiim  some 
settled  amends   for   the   danuigos,  and  thereof  found 


I,  *57.]  OF  DISTRESSES.  119 

pledges,  and  thereupon  he  may  tender  averment.  And 
according  as  the  truth  shall  be  found,  judgment  shall 
be  given  for  the  one  or  other. 

12.  When  the  taking  and  detaining  are  made  by 
other  bailiffs  than  ours,  and  the  plaintiff  has  obtained 
his  writ  against  the  bailiffs  jointly  with  the  lords,  in 
such  case  the  lords  may  either  avow  or  disavow  the 
•act  of  their  servants ;  and  the  plea  shall  be  pleaded 
accordingly.  *If  the  writ  be  obtained  against  the 
bailiffs  only,  in  such  case  we  will  that  each  shall  answer 
for  his  own  act,  if  the  act  was  done  in  the  absence  of 
the  lords  ;  but  if  the  lords  come  before  judgment,  and 
are  willing  of  their  own  accord  to  warrant  the  acts 
of  their  bailiffs,  the  lords  shall  be  charged  with  the 
acts  of  their  bailiffs,  and  the  bailiffs  discharged, 

13.  Another  answer  of  the  defendant  may  be  by 
avowing  the  taking  and  detaining  as '  good  and  rightful, 
inasmuch  as  the  plaintiff  is  his  tenant  and  is  in  arrear 
for  relief,'  or  suit  at  his  court  or  other  service,  '  for 
the  tenement  which  he  holds  of  him,  so  that  whenever 
the  plaintiff  would  have  performed  to  him  what  was 
in  reason  due,  or  to  that  end  would  have  found  reason- 
able security  by  pledges,  he  would  have  delivered  to 
him  his  cattle.'  To  which  the  plaintiff  may  reply,  that 
for  every  taking  and  detaining  for  service,  three  things 
ought  to  be  assigned  in  order  to  render  the  taking- 
reasonable,  to  wit,  a  certain  place,  out  of  which  the 
service  ought  to  issue,  a  certain  cause  for  which  the 
taking  was  made,  and  a  certain  seisin,  unless  the  dis- 
trainor can  show  a  deed  warrantino-  him  to  distrain 


120  BRITTON.  [I,  *57  h. 

per  my  et per  ^oi^^  wheresoever  be  please,  when  his  rent 
shall  be  in  arrear,  although  he  have  no  fee.  If  the 
defendant  in  his  defence  has  omitted  any  of  these  three 
*points,  and  the  plaintiff  demands  judgment  against 
him  as  being  undefended,  judgment  shall  be  given  for 
the  plaintiff.  And  if  the  defendant  counts  of  any 
seisin,  and  the  plaintiff  denies  it,  the  point  shall  be 
verified  by  the  country,  and  judgment  be  given  ac- 
cording to  the  verdict. 

14.  Where  the  defendant  assigns  the  taking  and 
detaining  to  be  rightful  on  account  of  service  in  arrear, 
and  in  particular  for  relief,  the  plaintiff  may  answer 
that  he  tendered  him  his  homage,  and  that  he  would 
not  then  take  it ;  whereupon  he  may  demand  judgment 
whether  he  was  obliged  to  perform  any  service  to  him, 
or  to  acknowledge  him  for  his  lord,  until  he  had  taken 
his  homage  and  accepted  him  as  his  man.  And  if  the 
plaintiff  can  aver  it,  let  it  be  adjudged  against  the  de- 
fendant. For  relief  and  other  services  due  from  any 
tenement  held  by  knight's  fee,  are  things  accessory  to 
homage,  which  is  the  principal,  and,  the  principal  ceas- 
ing, the  accessories  ought  of  right  to  cease. 

15.  Another  answer  of  the  defendant  may  be  by 
avowing  the  taking  and  detaining  as  rightful,  and 
assigning  it  to  be  for  reasonable  aid,  to  make  his  eldest 
son  a  knight,  or  to  marry  his  eldest  daughter.  To 
which  the  plaintiff  nui}^  I'eply,  and  say,  that  what  he 
has  assigned  ought  not  to  avail  him,  inasmuch  as  he 
is  not  a  knight  himself,  or  inasmuch  as  he  has  no  son 
or  no  daughter  ;  or  inasmuch  as  the  one  or  the  other 


1,  *58.]  OF  DISTRESSES.  121 

is  not  yet  of  age  to  receive  the  order  of  knighthood, 
or  to  consent  to  a  husband  ;  or  inasmuch  as  the  plain- 
tiff did  before  pay  his  reasonable  contribution  towards 
such  aid  to  the  same  *hjrd.  And  if  one  or  more  of 
these  answers  be  averred,  it  shall  be  adjudged  for  the 
plaintiff,  unless  the  defendant  can  prove  the  con- 
trary. 

16.  When  the  defendants  avow  the  distresses  and 
detainings  to  be  made  upon  the  plaintiffs  as  upon  ten- 
ants for  arrears  of  rent  or  other  services,  and  the  plain- 
tiffs disavow  them  for  their  lords,  let  it  be  awarded 
that  the  lords  in  such  case  be  in  mercy,  and  that  the 
plaintiffs  have  their  cattle  quietly  delivered  to  them 
and  recover  their  damages ;  and  the  lords  shall  have 
their  action  to  recover  the  tenements  in  demesne,  ac- 
cording as  shall  be  mentioned  in  the  chapter  upon 
Homage. 

17.  And  if  the  lords  assign  that  the  taking  and  de- 
taining was  for  the  arrears  of  some  service  issuin": 
out  of  a  tenement  which  the  plaintiffs  hold,  and  the 
plaintiffs  be  enfeoffed  by  any  to  hold  of  those  who  are 
mesne  between  them  and  the  chief  lords,  the  tenants 
will  then  have  the  right  to  be  acquitted  by  the  mesne 
tenants,  who  are  their  lords,  as  against  the  chief  lords 
distraining,  according  as  such  mesne  tenants  are  bound 
by  their  charters  of  feoffment.  And  if  they  will  not 
acquit  them  of  their  own  accord,  let  the  plaintiffs  be 
aided  by  our  writs  of  "Warranty  of  Charter,  ;ind  of 
Mesne,  and  by  proclamations,  according  to  the  ordi- 
nance of  our  statutes. 


122  BRITTON.  [I,  *58  h. 

*18.  When  the  mesne  tenants  shall  appear  in  court 
and  enter  into  warranty  and  acquittance  against  the 
lords,  then  let  the  original  pleas  cease,  and  the  pleas 
of  Avarranty  commence  ;  wherein  the  raesnes  may  an- 
swer several  ways.  For  they  may  disavow  holding  of 
them,  or  say  that  the  tenements  where  they  took  the 
distresses  are  not  of  their  fee ;  which  answers  being 
verified,  let  it  be  adjudged  for  the  first  plaintiffs 
against  the  lords. 

19.  The  mesnes  may  also  aid  themselves  by  ex- 
<3eptions  against  the  tenants  ;  for  they  may  demand 
whether  the  plaintiffs  have  anything  whereby  they  are 
held  and  bound  to  acquittance.  And  if  the  plaintiffs 
■cannot  produce  charter  or  writing  binding  them,  let  it 
be  adjudged  against  the  plaintiffs.  But  if  the  pleas 
were  removed  out  of  the  county,  so  as  to  be  before 
our  justices,  and  their  charters  have  been  burned  or 
stolen,  and  they  allege  the  same  in  court  by  Avay  of 
exception,  the  truth  shall  be  inquired  by  the  country, 
and  according  to  the  verdict  of  the  inquest,  judgment 
shall  pass  in  favor  of  the  mesnes  or  of  the  plaintiffs. 
Or  if  any  writ  of  Mesne  is  obtained  against  one  par- 
cener which  ought  to  be  sued  out  against  all  the  par- 
ceners, where  all  arc  bound  to  acquittance  as  one  heir 
by  their  common  ancestor,  the  writ  is  abatable  for 
error  in  the  obtaining  of  it,  and  so  in  all  real  pleas. 
And  also  any  mesne  may  say  by  way  of  exception, 
that  he  is  not  bound  to  acquit  his  tenant,  because  the 
same  tenant  never  performed  to  him  homage,  fealty, 
or  other  service;  and  if  this  be  verified,  and  that  the 


1,  *59.]  OF  DISTRESSES.  123 

^default  was  in  the  tenant,  it  shall  be  adjudged  against 
the  phiintiff. 

20.  Again,  the  defendant  may  avow  the  taking  and 
iletaining  to  be  rightful,  and  assign  that  he  did  it  by 
judgment  of  his  court, — and  thereof  he  may  vouch  his 
court  to  warranty, — and  in  particular  for  a  plaint  made 
against  the  plaintiff  by  such  an  one  his  neighbour,  who 
found  security  to  prosecute  his  phiint,  to  which  plaint 
the  same  plaintiff  was  summoned  to  answer  at  a  cer- 
tain day,  at  which  day  he  neither  came  nor  was  es- 
soined, wherefore  the  court  awarded  at  the  suit  of  the 
plaintiff,  that  he  who  now  is  plaintiff  sliould  be  dis- 
trained to  come  to  the  next  court,  until  he  would  sub- 
mit himself  to  justice  by  law.  If  the  plaintiff,  as  to 
the  matter  alleged,  is  willing  to  put  himself  upon  the 
record  oC  the  court,  the  defendant  shall  cause  the  rec- 
ord thereof  to  be  brought  into  court,  and  if  the 
record  make  for  the  defendant,  a  return  of  the  cattle 
shall  be  awarded  to  him,  and  the  plaintiff  in  mercy 
for  his  false  plaint.  But  if  the  record  make  for  the 
plaintiff,  let  it  be  awarded  that  the  plaintiff  have  his 
distress  free,  and  recover  his  damages,  and  the  defend- 
ant be  in  raerc\\  And  if  false  judgment  or  erroneous 
proceedings  be  found  in  the  record,  and  the  action  be 
in  the  county,  w^e  will  not  that  the  sheriff  or  suitors 
have  cognizance  thereof;  but  he  who  shall  find  him- 
self aggrieved  shall  make  his  complaint,  and  cause  the 
proceedings  and  the  record  to  be  brought  by  our  writ 
before  our  justices  of  the  Bench  at  Westminster,  and  the 
error  shall  be  there  redressed,  if  any  be  found  therein. 


124  BRITTON.  [I,  *59  h. 

*21.  If  the  plaintiff  acknowledge  the  distress  to  be 
made  by  aAvard  of  the  court  of  the  defendant,  he  so 
far  admits  the  taking  to  be  legal  ;  but  if  lie  further  say 
that,  when  he  tendered  him  pledges  to  appear  in 
his  court,  and  there  to  submit  to  justice  according  to 
law,  the  defendant  rejected  such  plevin,  and  refused  to 
permit  him  to  replevy  the  distress,  and  if  the  defendant 
deny  it,  averment  shall  be  made,  and  according  to  the 
verdict,  it  shall  be  adjudged  for  one  party  or  the 
other. 

22.  If  the  plaintiff  complain  only  against  one,  and 
has  by  his  plaint  made  him  both  taker  and  detainer, 
and  in  evidence  of  this  produces  suit  ;  in  such  case  the 
defendant  may  deny  the  taking,  and  if  the  suit  on  ex- 
amination be  found  to  disagree,  let  it  be  adjudged  for 
the  defendant,  and  the  plaintiff  be  in  mercy  for  his 
false  suit.  If  the  suit  be  found  to  agree,  then  the  de- 
fendant may  defend  the  taking  by  his  law  against  the 
plaintiff  and  his  suit ;  and  if  he  tenders  his  law  to  the 
plaintiff  and  he  refuses  it,  it  shall  be  adjudged  against 
the  plaintiff,  and  so  in  the  reverse  case.  If  the  plain- 
tiff accepts  it,  a  day  shall  be  given  to  the  defendant, 
that  he  come  that  other  day  to  perfect  his  law  with 
his  twelve  co-jurors  ;  at  which  day  he  may  be  essoined 
from  making  his  law,  and  the  plaintiff  may  also  be 
essoined.  But  if  either  make  default,  it  shall  be  ad- 
judged against  the  absent  party.  If  the  defendant  has 
not  fully  twelve  co-jurors,  or  any  of  them  are  refusable 
upon  good  exception,  as  by  the  exception  that  he  is  a 
villain,  or  excommunicated,  or  has  been  attainted  of 


I,  *60.]  *  OF  DISTPwESSES.  125 

^perjury,  or  condemned  to  the  pillor}',  let  it  be  adjudged 
for  the  plaintiff,  and  the  defendant. in  mercy,  inasmuch 
as  he  has  failed  in  performing  his  law. 

23.  If  the  plaintiff  say  that  the  defendant  designedly 
absented  himself,  in  order  not  to  be  found  where 
pledges  might  be  tendered  to  him ;  or  if  he  say  that  he 
tendered  pledges  to  his  bailiff,  such  a  one  by  name, 
and  he  would  not  deliver  them,  because  his  lord  had 
forbidden  the  deliverance;  in  both  these  cases  defence 
by  law  lies,  if  the  plaintiff  has  his  suit  agreeing  therein. 
But  if  he  has  no  suit,  or  such  as  do  not  agree,  then  it 
will  be  unnecessary  for  the  defendant  to  wage  law 
against  the  sole  word  of  the  plaintiff ;  butit  shall  be 
adjudged  against  the  plaintiff.  For  we  will  that  none 
be  obliged  to  wage  law  against  another  without  prop- 
er suit  produced  upon  the  point.  And  if  the  plaintiff 
would  complain  of  the  bailiff  in  respect  of  the  refusal, 
the  contest  shall  be  between  the  plaintiff  and  the 
bailiff. 

24.  Where  the  defendant  avows  the  taking  and  de- 
taining to  be  justifiable  on  account  of  service  which 
was  in  arrear  for  a  tenement  in  such  a  vill,  which  the 
same  plaintiff  holds,  and  whereof  he  was  himself  seised 
or  some  other  his  ancestor  by  the  hands  of  the  plaintiff 
or  other  certain  tenant,  since  the  time  limited  in  assise 
of  novel  disseisin,  if  the  plaintiff  cannot  deny  the  sei- 
sin, let  it  be  adjudged  for  the  defendant.  For  we  will 
not  have  it  tried  by  such  writ,  whether  the  seisin  has 
been  rightful  or  tortious ;  but  the  tenant  may  procure 
by  our  writ,  that  his  lord  do  not  demand  of  him  other 


126  BlUTTON.  ■  [I,  *60i. 

*ser vices  or  other  customs  than  he  ought  of  right  to  do 
to  hiiu  ;  so  that  if  he  is  aggrieved  by  the  possession,  it 
is  our  will  that  he  shall  procure  his  remedy  in  the 
right ;  and  that  every  writ  shall  have  its  proper  nature, 
and  one  shall  not  be  pleaded  by  means  of  another. 

25.  Another  plea  of  the  defendant  may  be,  'that  he 
took  and  detained  the  cattle  rightfully,  and  by  reason 
of  a  soil  which  was  his  several,  in  the  which  he  found 
the  same  cattle  feeding  several  times,  and  from  the 
which  he  had  often  warned  the  plaintiff  to  turn  them 
out,  and  he  nevertheless  sent  them  in  another  time 
contrary  to  his  prohibition,  and  he  was  always  ready 
to  deliver  them,  if  the  plaintiff  had  been  willing  to  ab- 
stain from  doing  those  wrongs,  and  thereof  to  have 
found  surety,  whereas  the  plaintiff  never  would  do  so.' 
To  this  the  plaintiff  may  reply,  that  '  the  defendant 
wrongfully  took  them  and  wrongfullv  detained  them, 
because  the  pasture  of  the  same  soil  is  his  common,  and 
his  common  ought  to  be  where  he  and  his  ancestors 
have  always  had  common,  and  this  he  is  ready  to  ver- 
ify, where  and  when  he  ought.'  And  because  he  would 
not  deliver  the  beasts  quit,  the  plaintiff  might  by 
means  of  this  writ  recover  title  of  common  and  free- 
hold, where  peradventure  he  had  never  any  right  of 
common,  if  an  inquest  were  to  decide  in  his  favour ;  ^ 

1  This  passage  is  obscurely  expressed.  If  we  understand  it  as 
implying  tliat  the  inquest  upon  the  title  to  common  is  taken  in 
the  action  of  replevin,  it  is  contrary  to  the  general  rule,  that  a 
title  to  freehold  is  not  to  be  tried  in  such  an  action  (see  before, 
8.  24) ;  and  is  contradicted  by  the  parallel  place  in  Fleta,  where 


I,  *6l.]  OF  DISTKESSES.  12T 

*in  such  case  it  is  our  will  that  the  cattle  remain  with 
the  i)laintiff,  and  the  defendant  be  in  mercy ;  and  if 
the  plaintiff  will  still  be  a  commoner  and  claim  a  free- 
hold of  common,  the  defendant  shall  have  his  remedy 
by  our  writ  of  Novel  Disseisin  if  he  thinks  fit  to  pur- 
sue it. 

26,  Such  as  shall  be  convicted  of  taking  a  distress 
beyond  the  value  of  their  demand,  although  they  have 
avowed  the  cause  of  their  distress  to  be  legal,  shall 
nevertheless  be  in  mercy  for  the  excess.  And  if  any 
one  has  made  a  double  distress  for  one  demand,  and  in 
particular,  after  the  deliverance  of  the  first  distress, 
pending  the  plea  concerning  the  first  taking,  in  such 
case  the  plaintiff  shall  be  entitled  to  our  writ,  to  cause 
his  cattle  to  be  delivered,  and  the  distrainor  shall 
be  bound  by  gage  and  pledge  to  be  before  us  or  our 
justices  at  a  certain  day  to  answer  for  such  trespass  com- 
mitted against  our  peace.  Whosoever  shall  be  con- 
victed of  this  offence,  damages  shall  be  first  awarded 
to  the  plaintiff,  and  afterwards  the  distrainor  shall  be 
punished  by  imprisonment  and  fine ;  or  in  such  cases 

it  is  expressly  said,  tliat  tlie  sheriff  upon  such  a  plea  has  no 
power  to  proceed  further.  (Fie.  101,  §  24.)  Yet  this  construction 
appears  to  be  adopted  by  the  commentator  in  IVJS.  N,  who  says  : 
*  par  cas  poet  il  recoverir  title  de  franc  tenement  parmi  verdyt 
en  le  replegiari,  tot  seit  ceo  a  tort.'  I  should  rather  suppose  that 
the  sense  of  pur  ceo  qe  in  the  beginning  of  the  sentence  ought  to 
be  repeated,  and  that  the  tnie  translation  would  be,  '  And  be- 
cause, on  account  of  the  non-delivery  of  the  beasts,  the  plaintiff 
might  recover  title  of  freehold,  &c. ;  therefore  it  is  our  will  in 
8ucl>  case,  &c.' 


128  BRITTOK  [I,  *61  I. 

we  will  command  our  sheriffs,  *that  if  they  find  such 
trespasses  to  be  committed  against  our  peace,  they  shall 
speedily  inflict  such  punishment  by  imprisonment  of 
the  trespassers  and  by  heavy  amercements,  that  others 
by  their  example  may  be  corrected  in  like  cases. 


CHAPTER  XXIX. 

Of  Debt. 

1.  In  county  courts  also  before  our  sheriffs  and  the 
suitors,  and  in  hundred  courts,  and  in  courts  of  freemen, 
pleas  of  trespass  and  debt  may  be  pleaded  without  our 
writs,^  simply  by  gage  and  pledge,  provided  that 
neither  the  goods  carried  away  in  trespass  nor  the  debt 
demanded  exceed  forty  shillings ;  except  trespass  of 
mayhems  and  wounds,  and  inprisonment,  and  batteries 
committed  against  our  peace.  For  we  will  that  no 
one  have  cognizance  or  jurisdiction  to  hold  pleas  of 
such   complaints,  nor  of  other  trespasses   for  goods 

^  The  following  note  explains  some  of  the  disadvantages  of 
proceeding  in  the  inferior  courts :  '  In  pleas  commenced  by 
plaint,  issue  cannot  be  tai^en  by  averment  of  the  country,  but 
only  by  suit  or  proof.  And  although  there  may  be  jurisdiction 
in  the  county  court  or  in  the  court  of  a  liberty,  extending  to  ten, 
twenty,  or  thirty  pounds,  still  it  is  more  advantageous  to  plead 
in  Bank  by  the  prcecipe  quod  reddat,  on  account  of  the  fie7-i 
facias  which  follows  by  statute.  Buttlie  sheriff  or  bailiff  has  no 
power  to  levy  the  debt  out  of  the  lands  and  chattels,  thougli  he 
has  power  to  distrain  by  virtue  of  execution  of  judgment.' 
(Note  in  MS.  iV.) 


I,  *62.]  OF  DEBT.  129 

carried  away  bej'^ond  the  value  of  forty  shillings,  or  of 
debts  exceeding  the  same  sum,  without  our  writs  ; 
which  writs  shall  sometimes  be  pleaded  in  the  county 
court,  and  in  franchises,  unless  removed  therefrom  by 
our  precept,  and  sometimes  elsewhere  before  our  jus- 
tices ;  and  we  will  that  great  trespasses  be  pleaded  be- 
fore ourselves. 

2.  An  obligation  is  a  legal  bond,  whereby  a  person 
is  bound  to  give  or  do  anything,  and  thus  it  is  the 
parent  of  an  action,  and  takes  its  origin  from  some 
precedent  trespass  or  contract.  *An  obligation  by  con- 
tract may  arise  in  many  ways  by  the  united  consent 
of  the  parties  ;  which  consent  is  sometimes  naked  and 
without  clothing,  and  sometimes  clothed.  From  a 
naked  obligation  no  action  arises,  except  by  common 
assent ;  it  is  necessary  therefore  in  every  obligation 
that  it  be  clothed.  An  obligation  should  be  clothed  by 
five  incidents,  by  a  material  thing,  by  words,  by  writ- 
ing, by  unity  of  will,  by  delivery,  by  relation.^ 

3.  It  is  clothed  by  a  material  thing,  when  anything 
is  lent  and  borrowed,  to  be  restored  on  a  certain  day  ; 
and  by  such  loans  the  debtors  are  bound  to  restore  to 
the  creditors  the  things  borrowed  in  as  good  or  better 
condition  than  they  received  them,  or  else  their  value, 
unless  by  accident  of  fire,  water,  robbery,  or  larceny, 
they  have  lost  them ;  for  against  such  accidents  no  one 

1  Our  author  gives  no  explanation  of  the  meaning  of  joynture. 
Tlie  word  is  borrowed  from  Bracton,  where  it  appears  to  be  used 
to  denote  the  connection  of  several  contracts  relating  to  the 
jsame  subject  matter.     (Brae.  99,  100  b  ;  Fie.  128,  c.  60,  §  2.) 
9 


130  BRITTON.  [I,  *62  h. 

ought  to  answer  for  things  lost,  unless  they  happened  by 
his  own  fault  or  negligence.  But  if  a  debtor  carries 
money  about  him  and  foolishly  shows  it  among  thieves, 
and  is  robbed  of  it,  it  does  not  follow  that  he  is  not 
bound  to  the  creditor ;  because  he  did  not  use  his  dili- 
gence to  keep  the  money,  for  he  might  have  taken  better 
care  of  it. 

4.  The  second  kind  of  clothing  is  by  words  passing 
between  the  creditor  and  debtor,  by  which  they  come 
to  an  agreement  by  offers  and  stipulations. 

5.  The  next  incident  is  by  writing,  which  may  be 
pure  and  simple,  and  without  day  or  condition  ;  in 
which  case  the  creditor  may  demand  the  thing  pres- 
ently or  whenever  he  pleases.  *But  if  a  day  of  pay- 
ment be  specified  in  the  writing,  the  debtor  is  not  bound 
to  pay  before  the  day,  and  when  the  day  arrives,  it  is 
sufficient  if  he  makes  the  payment  any  time  of  the  day, 
for  the  debtor  has  the  whole  day  ;  and  likewise  it  is 
with  regard  to  a  certain  year,  or  a  certain  month,  named 
in  the  writing,  if  no  certain  day  be  specified.  Also, 
the  writing  may  be  conditional,  and  will  or  will  not 
take  effect,  according  as  shall  be  mentioned  below  con- 
cerning conditional  purchases.  But  whatever  the  condi- 
tions may  be,  no  writing  or  obligation  shall  be  binding 
as  a  conditional  contract,  if  the  condition  be  impossible 
or  unlawful.  Impossible,  as  in  this  case,  if  you  will 
procure  me  the  moon,  I  will  give  you  ten  shillings. 
Unlawful,  thus,  if  you  kill  such  a  man,  I  will  give  you 
ten  shillings.  Yet  in  the  negative  such  conditional 
obligations  would  hold  good,  thus,  if  you  do  not  pro- 


I,  *63.]  OF  DEBT.  131 

cure  me  the  moon,  or  if  you  do  not  kill  such  a  man,  I 
will  give  you  ten  shillings.  And  if  the  debtor  binds 
himself  in  any  allowable  and  innocent  penalty,  the 
penalty  shall  stand,  for  the  debtor  was  willing  when  he 
bound  himself  thereto,  and  no  injury  is  done  him  against 
his  will. 

6.  The  next  incident  is  unity  of  will  and  consent  ; 
and  this  is  mentioned  with  reference  to  those  who  know^ 
not  how  or  are  not  able  to  consent,  as  the  deaf,^  and 
the  mad,  and  mere  idiots,  and  infants  in  their  tender 
age,  and  lunatics  and  frantic  persons  during  their  fury, 
and  *raarried  women,  and  persons  in  religion  removable 
by  their  superiors  of  the  same  order,^  and  those  who 
are  compelled  to  bind  themselves,  and  pure  villains.^ 

1  Bracton  admits,  that  a  deaf  man  may  contract  by  writing  ; 
so  also  Fleta.     See  the  passages  referred  to  in  the  margin  above. 

2  Among  the  statutes  of  the  Benedictine  order,  confirmed  at  a 
council  of  the  heads  of  the  oi'der  in  England,  a.  d.  1249,  is  the 
following  :  "  NuUus  nionachus  obedientiarius  vel  claustralis  det 
aliquid  vel  suscipiat  absque  licentia  sui  superioris."  (Matth. 
Paris.  Addit.  p.  1096.)  By  the  same  regulations  no  prior  or  other 
officer  or  obedientiary  was  to  be  appointed  for  life,  but  all  were 
to  be  subject  to  removal,  (ib.  1096,  1098.)  See  Littleton,  Ten. 
s.  200. 

3  A  villain  might  acquire  property  real  or  personal,  and  his 
acquisitions  enured  to  the  benefit  of  his  lord,  if  the  latter  chose 
to  take  them  ;  but  the  villain  while  in  possession  could  make  a 
good  title  to  a  stranger.  See  li.  ii.  c.  7.  s.  1 ;  Brae.  25  b.  It  fol- 
lows from  s.  25,  below,  p.  139,  that  debts  and  executory  con- 
tracts could  not  be  enforced  against  a  villain  pleading  his  own 
villenage.  But  no  reason  appears  why  a  contract  should  not 
have  been  enforced  by  a  villain  against  a  third  party,  if  the  rule 


132  BRITTON.  [1,  *63  h. 

With  such  persons  no  contract  or  obligation  is  bind- 
ing. 

The  next  incident  is  delivery,  which  is  an  induction 
of  the  thing  into  possession  with  the  consent  of  the 
creditor,  as  shall  be  mentioned  concerning  such  induc- 
tions in  treating  of  purchases  after  gifts. 

8.  When  any  one  will  sue  for  a  debt  within  the  sum 
of  forty  shillings,  or  for  any  small  trespass,  first,  let 
him  find  security  to  the  sheriff  to  prosecute  his  plaint, 
if  he  will  proceed  in  the  county  court,  or  to  some 
bailifiP,  according  as  he  chooses  to  proceed  in  the  hun- 
dred court,  or  in  a  freeholders'  court.  And  let  the 
debtor  be  summoned  to  be  at  the  next  court  to  answer 
the  plaintiff  upon  such  demand  as  he  has  made  against 
him,  so  that  he  have  reasonable  warning  to  answer  the 
demand  of  the  plaintiff. 

9.  Upon  the  da}'^  named  in  the  summons  both  parties 
may  be  essoined  ;  but  if  the  debtors  or  any  persons 
against  whom  a  plaint  of  trespass  is  brought  without 
our  writ  shall  make  default  whether  such  default  be 
before  essoin  or  after,  it  shall  be  awarded  that  they  be 
distrained  by  their  cattle  or  by  their  chattels  to  be  at  the 
next  court.  And  if  they  make  default  another  time,  it 
shall  be  awarded  that  the  first  distress  *be  retained,  and 
a  fresh  one  taken,  and  so  from  court  to  court,  and  that 
they  may  not  replevy  the  beasts,  until  they  find  pledges 

generally  held,  that  an  exception  of  villenage  against  the  person 
of  the  plaintiff  could  only  be  pleaded  by  his  lord.  Compare  be- 
low, li.  ii.  c.  18.  ss.  2,  5  ;  Brae.  193  b,  196  6,  197  ;  Hengham  P.  c. 
€.  p.  103  ;  Littleton,  Ten.  s.  189. 


T,  *64.]  OF  DEBT.  133 

to  answer  the  plaintiff.  In  plaints  of  trespass  no  sum- 
mons shall  be  made,  but  they  shall  be  distrained  on  the 
first  day.  And  if  the  plea  be  removed  before  our  jus- 
tices, the  grand  distress  shall  take  place,  and  the  sheriff 
be  charged  to  answer  for  the  issues,  as  above  mentioned 
in  the  chapter  of  Attachments. 

10.  And  when  the  defendants  come  to  have  their 
distresses  delivered,  let  them  find  pledges  to  answer  at 
the  next  court,  and  to  return  the  distresses  if  they  do 
not  appear,  and  then  let  the  distresses  be  delivered.  At 
which  day,  if  they  do  not  appear,  let  it  be  awarded 
that  the  pledges  be  summoned  to  be  at  the  next  court, 
to  show  why  they  did  not  produce  those  for  whom 
they  were  pledged  according  to  their  undertaking ; 
and  whether  they  come  on  the  day  on  which  they  are 
summoned  or  not,  let  them  be  amerced  ;  and  they 
shall  have  their  recovery  against  those  whom  they 
pledged,  for  not  acquitting  them  of  their  suretyship,  as 
they  ought  to  have  done.  The  defendants  shall  then 
be  distrained  again  to  come  and  answer  to  the  plain- 
tiff, and  these  distresses  shall  remain  irreplevisable 
until  they  have  answered. 

11.  "When  any  defendant  shall  be  found  in  court, 
*after  he  has  been  attached,  let  him  immediately  an- 
swer, or  be  treated  as  undefended,  whether  he  has  be- 
fore made  default  or  not ;  and  when  he  has  answered, 
then  and  not  before  let  the  distress  be  delivered  to  him. 
This  shall  be  done  upon  presumption  of  his  malice,  in 
that  he  was  not  willing  before  to  find  pledges  to  be 
amenable  to  justice. 


134  BRITTOK.  [1,  *64  h. 

12.  When  the  parties  shall  have  appeared  in  court, 
then  let  the  plaintiff  open  his  plaint,  and  say  that  '  the 
defendant  wrongfully  detains  from  him  and  does  not 
render  to  him  twenty  shillings,  which  he  lent  him  on 
such  a  day  in  such  a  year  in  such  a  town,  in  ready 
money,  and  which  money  he  ought  to  have  rendered 
to  him  on  such  a  day  following  in  the  same  year,  and 
the  said  money  did  not  render,  but  detained  the  same 
wrongfully  and  to  his  damage  of  ten  shillings,  and  if 
he  will  deny  it,'  then  the  plaintiff  may  tender  suit. 

18.  To  this  the  defendant  must  answer  and  defjnd 
the  wrong  and  force,  and  the  debt  and  the  damages. 
And  as  an  obligation  is  contracted  in  divers  ways,  so 
likewise  it  may  be  defended  ;  hence  the  debtors  may 
aid  themselves  in  many  ways  by  exceptions.  Where- 
fore let  the  defendant  aid  himself  by  exceptions,  if 
there  be  any  w-hich  can  avail  him.  Among  the  rest, 
he  may  demand  whether  the  plaintiff  has  anything 
from  him,  whereby  he  has  bound  himself  to  render 
that  debt ;  and  if  he  produces  a  tally,  or  a  suit,  and  the 
suit  is  found  to  agree,  then  he  may  den}-^  the  debt  by 
his  law,  and  in  that  case  the  ]>roceedings  are  the  same 
as  are  before  mentioned  in  the  chapter  on  Distress. 

14.  If  the  plaintiff  produces  a  writing,  the  defendant 
may  answer  thereto  in  several  ways;  *for  lie  may 
deny  the  writing,  and  tender  averment  by  the  country 
that  the  same  is  not  his  deed.  And  if  the  plaintiff 
prays  the  averment,  then  let  the  truth  be  inquired  by 
means  of  the  witnesses  named  in  the  writing,  when 
there  are  any  or  by  the  country. 


I,  *64  5.]  OF  DEBT.  135 

15.  Or,  if  the  writing  be  the  deed  of  his  ancestor,  he 
may  demand  judgment  of  the  writing,  whether  he  is 
bound  to  answer  to  that  writing  for  the  debt  of  his  an- 
cestor, whereas  there  is  no  mention  made  in  the  writ- 
ing of  his  being  obliged  to  the  payment  thereof.  For 
in  this  case  we  will  that  none  be  bound  to  pay  the 
debt  of  his  ancestor,  Avhose  heir  he  is,  to  any  other  but 
to  us,  unless  he  be  thereto  especially  bound  by  the  deed 
of  his  ancestor. 

16.  Or  he  may  say  that  the  writing  ought  not  to 
affect  him,  for  when  he  made  it  he  was  under  the  age 
of  ten  years  ;  ^  and  if  this  be  verified,  let  it  be  adjudged 
against  the  plaintiff. 

17.  Or  he  may  plead,  that  this  writing  ought  not  to 
affect  him,  for  at  the  time  of  it  being  made  he  had 
lost  his  seal,  and  caused  it  to  be  cried  and  published 
at  the  churches  and  markets,  so  that  if  anything  was 
made  under  that  seal  after  a  certain  day  on  which  it 
was  lost,  it  ought  not  to  affect  him  ;  and  in  such 
manner  he  may  deny  the  deed,^  and  thereupon  let  the 

^  Tlie  age  under  ten  years  appears  to  be  selected  merely  as  an 
•example  of  pleading  in  a  particular  instance,  with  no  reference 
to  any  especial  disability  connected  with  that  age. 

2  There  is  an  entry  in  MS.  M.  of  an  assise  of  novel  disseisin 
concerning  land  at  Thorley,  between  William  de  Gerburg  and 
William  de  Clifford  and  others,  which  appears  to  belong  to  the 
end  of  the  reign  of  Henry  III  or  the  beginning  of  Edward  I,  in 
which  tliis  defence  is  set  up  against  the  deed  of  Arnald  de  Thor- 
ley under  which  the  demandant  claimed.  The  jury  found, 
'quod  praedictus  Arnaldus  amisit  sigillum  suum,  et  si  aliqua 
carta  vel  scriptum  ab  ilia  hora  in  posterum  proferatur  sigillatum 


136  BKITTOK  [I,  ""GQ. 

truth  be  inquired  by  the  neighbourhood  where  the  deed 
is  supposed  to  have  been  made,  and  according  to  the 
verdict  of  the  country,  let  him  who  shall  be  found  to 
have  been  guilty  of  falsehood  be  adjudged  to  prison^ 
and  punished  by  fine. 

18.  And  if  the  deed  was  not  made  within  our  juris- 
diction, so  that  the  truth  *cannotbe  inquired  by  us,  the 
proof  shall  be  left  to  the  plaintiff,  so  that  if  he  can 
prove  the  contract  by  good  witnesses,  it  shall  be  ad- 
judged in  his  favor.  These  exceptions  shall  have 
place  in  our  court  and  before  our  justices  ;  for  in  county 
courts  and  other  petty  courts  no  one  can  prove  a  foreign 
contract,  if  it  is  denied. 

19.  If  there  is  in  the  Avriting  any  erasure  in  the 
number  or  in  proper  names,  or  in  the  date,  or  day  of 
payment,  or  if  there  be  other  signs  of  falsification  in 
it,  as  diversity  of  hands  or  of  ink  in  the  writing,  or  if 
the  seal  be  so  attached  that  it  may  be  taken  off  and 
put  on  again  by  contrivance,  then  the  defendant  may 

praedicto  sigillo,  quod  pro  nuUo  haberetur.  Et  dicit,  quod 
praedicta  carta  et  scriptuin  facta  fueruiit  tempore  quo  praedictus 
A.  amiserat  praedictum  sigillum  ;  unde  dicit  praecise  quod  licet 
praedicta  carta  et  scriptum  signatum  fuit  de  sigillo  suo,  unquam 
de  voluntate  praedicti  Arnaldi  facta  fuerunt.'  Fortunately  the 
demandant  had  also  pleaded  an  acknowledgment  of  the  deed  by 
Arnald  de  Thorley  before  Gilbert  de  Preston  and  his  companions 
Justices  Itinerant  in  tlie  county  of  Hertford,  39  Hen.  Ill,  and  as 
to  this  fact  had  vouched  the  rolls  of  the  said  Iter.  '  And  because 
the  said  William  had  put  himself  as  well  upon  the  rolls  of  the 
said  Iter  as  upon  the  assise,  the  trial  was  adjourned.'  Upon  the 
subsequent  day  the  acknowledgment  to  Arnald  was  found  upon 
the  rolls,  and  the  plaintiff  obtained  judgment. 


I,  *66J.]  OF  DEBT.  13T 

demand  judgment  whether  he  is  bound  to  answer  to 
such  a  defective  deed  ;  in  which  case  we  will  that 
judgment  be  given  against  the  plaintiff  for  the  great 
presumption  of  fraud. 

20.  Or  he  may  say  that  the  writing  ought  not  to 
affect  him,  because  it  was  made  at  a  time  when  the 
defendant  was  in  prison  ;  which  answer  must  either 
be  allowed  or  disallowed,  according  as  fear  or  force  was 
used  against  him  in  prison,  as  above  mentioned  in  the 
chapter  upon  prisoners.  Or  he  may  say  that  the  writing 
ought  not  to  affect  him,  by  reason  that  he  executed  it 
when  he  was  not  in  his  right  senses.  This  exception 
shall  hold  in  the  case  of  madmen  and  those  who  have 
lost  their  memory  by  sickness  or  an}'^  ^otherpain  ;  but 
not  in  the  case  of  drunkards,  or  of  such  as  are  light- 
headed, although  they  may  sometimes  not  be  in  their 
right  mind. 

21.  Or  he  may  say,  that  the  deed  ought  not  to  affect 
him,  because  the  plaintiff  was  once  his  steward,  or  his 
chamberlain,  or  in  other  service  with  him,  and  on  ac- 
count of  the  great  confidence  which  he  had  in  him,  he 
delivered  him  his  seal  to  keep,  and  while  he  had  it  in 
his  custody  he  caused  the  said  deed  to  be  made  without 
his  privit3^  Inasmuch  as  he  thus  in  part  acknowledges 
the  deed  to  be  his,  it  shall  be  awarded  for  the  plaintiff  ; 
and  let  the  defendant  provide  himself  for  the  future 
with  one  who  will  keep  his  seal  safer.  And  he  shall 
have  his  action  of  treason  against  the  plaintiff  by 
appeal  of  felony,  if  he  pleases  ;  which  action  must  be 
prosecuted  within  a  year  and  a  day  from  the  time  when 


138  BKITTON.  [I,  *67. 

he  first  knew  of  that  writing  ;  or  if  he  will  not  sue  by 
appeal  of  felony,  he  may  bring  his  suit  in  form  of 
trespass.  For  if  the  exception  were  tried  by  an  inquest, 
and  given  against  the  plaintiff,  he  would  be  punished 
as  in  form  of  trespass,  and  the  felony  would  remain 
unpunished. 

22.  Or  he  may  say  that  the  deed  ouglit  not  to  affect 
him,  because  it  was  made  on  condition,  so  that  if  the 
plaintiff  had  performed  the  condition,  then  he  would 
have  been  bound  to  him.  *But  in  proof  of  this  he  must 
show  some  writing  of  the  plaintiff  or  enrollment  in  court 
of  record,  in  default  of  which  the  plaintiff  may  defend 
the  condition  by  his  law,  and  recover  the  demand 
against  the  debtor.  And  if  he  produce  a  writing  con- 
taining the  condition,  which  the  plaintiff  cannot  deny, 
it  shall  be  tried,  whether  the  plaintiff  has  performed 
the  condition  or  not,  and  this  not  by  rigour  of  law,  but 
by  means  of  the  exception,  and  according  as  shall  be 
found  concerning  the  satisfaction  of  the  condition  it 
shall  be  adjudged  for  one  or  the  other.  For  rigour  of 
law  would  require  that  one  action  should  not  be  tried 
by  another,  any  more  than  one  question  can  be  resolved 
by  another.  But  if  the  condition  is  contained  in  the 
writing  produced  by  the  plaintiff,  in  such  case  there 
shall  not  be  two  causes  of  action. 

23.  Or  the  defendant  may  allege  payment,  and  show 
an  acquittance. 

24.  Or,  if  the  debt  is  demanded  against  him  as  a 
surety,  and  he  demands  judgment,  whether  he  ought 
to  answer  for  the  debt  so  long  as  the  principal  debtor 


1,  *67  5.]  OF  DEBT.  139 

is  capable  of  doing  so,  this  exception  shall  be  allowed 
to  the  defendant,  if  the  cause  be  true.  But  if  the 
principal  debtor  and  the  pledges  are  bound  each  for 
the  whole  severally,  then  the  exception  shall  not  be 
allowed,  but  judgment  shall  go  for  the  plaintiff,  and 
the  surety  shall  have  his  action  and  his  recovery  over 
against  the  principal  debtor.  And  if  pledges  are 
jointly  bound,  and  the  demand  is  made  severally  against 
one,  when  there  are  more  than  one,  and  this  pledge 
demands  judgment  whether  he  ought  to  answer  sever- 
ally for  the  joint  obligation,  this  exception  shall  be  al- 
lowed, if  the  cause  be  true,  and  it  shall  be  awarded  that 
the  pledge  do  go  without  day,  and  the  plaintiff  in 
mercy. 

*25.  Or  he  may  say  that  this  deed  ought  not  to  affect 
him,  because  he  is  the  villain  of  such  a  one,  by  reason 
of  his  blood  and  of  his  tenement,  and  was  of  that  con- 
dition when  he  made  the  writing,  and  Avhatsoever  he 
has  belongs  to  his  lord,  so  that  he  has  nothing  of  his 
own  ;  and  he  may  demand  judgment  whether  he 
ought  to  answer  to  such  contract  without  his  lord. 
And  if  the  plaintiff  cannot  deny  this,  it  shall  be  award- 
ed that  the  plaintiff  take  nothing  by  his  plaint,  but  be 
in  mercy,  and  the  villain  without  day.  And  if  the 
plaintiff  brings  his  plaint  against  the  lord,  and  the  lord 
demands  judgment  whether  his  villain  can  bind  him,  or 
whether  he  is  bound  to  answer  for  the  personal  act  of  his 
villain,  it  shall  also  be  adjudged  against  the  plaintiff. 
And  the  like,  in  case  where  a  married  woman  is  bound  ; 
for  we  will  not  that  a  wife  shall  have  power  to  bind 


140  BRITTOK  [I,  *68. 

her  husband,  or  a  villain  his  lord,  or  any  other  his  su- 
perior, or  a  parson  his  church  without  the  bishop  and 
patron,  on  account  of  the  mischief  which  might  arise 
therefrom. 

26.  Or  he  may  say,  that  he  is  impleaded  or  appealed  of 
felony,  and  if  he  demands  judgment  whether  he  ought 
to  answer  in  a  plea  of  debt  until  he  is  acquitted  of  the 
felony,  and  if  the  cause  be  true,  and  the  felony  be 
capital,  then  we  will  that  the  exception  be  allowed. 

27.  Or  he  may  say,  that  he  was  formerly  impleaded 
for  the  same  debt  and  by  the  same  person  in  our  court, 
or  in  another,  where  he  was  acquitted  by  judgment, 
and  the  plaintiff  in  mercy.  And  if  the  plaintiff  cannot 
deny  this,  or  if  the  parties  *put  themselves  upon  proof 
by  the  record,  let  it  be  adjudged  according  to  the 
record  for  one  or  the  other. 

28.  Or  he  may  plead,  that  he  ought  not  there  to 
answer  concerning  this  debt,  because  there  is  a  plea 
depending  concerning  the  same  debt  between  the  same 
persons  in  a  superior  court,  or  elsew^here  in  our  court. 
And  if  the  plaintiff  cannot  deny  it,  he  loses   his  plaint. 

29.  Or,  if  the  debt  be  issuing  out  of  any  tenement 
as  an  annual  rent  ])ayable  yearly  for  term  of  life  at 
least,  and  the  debtor  demand  judgment  whether  he 
ought  to  answer  concerning  frank  tenement  to  a  plaint 
or  writ  of  debt  without  other  writ,  in  such  case  w^e 
will  that  the  plaintiff  take  nothing,  but  proceed  by 
writ  of  annual  rent,  or  Iw  distress. 

30.  If  the  plaint  is  before  us  or  before  our  Steward, 
then    we  wnll    that   the    debtor    answer   concerning 


I,  *68  b.]  OF  DEBT.  141 

every  debt  for  which  he  shall  be  found  bound  to  the 
plaintiff  under  the  distress  and  jurisdiction  of  the 
Steward  of  our  household,  wherever  the  contract  was 
made,  whether  within  our  realm  or  without,  and 
whether  the  debt  be  great  or  small,  so  as  it  does  not 
concern  frank  tenement.  And  we  will  that  plaintiffs 
prosecute  their  plaints  before  our  Steward  for  such 
debts  without  our  writs,  but  by  simple  plaint  only,  and 
by  finding  surety  to  prosecute  the  plaints  ;  and  the 
like  of  trespasses  *and  felonies  committed  within  the 
verge  of  our  household,  wheresoever  we  shall  be  in  our 
realm ;  which  verge  shall  comprise  a  circumference  of 
twelve  miles  around  our  dwelling, 

31.  When  any  one  shall  be  attached  and  shall  appear 
in  court  before  our  Steward,  being  impleaded  of  a 
debt,  which  debt  he  cannot  deny,  let  it  be  awarded 
that  the  plaintiff  recover  his  debt,  and  damages  by  tax- 
ation of  the  court ;  and  let  the  debtor  be  delivered  to 
the  Marshal,  to  be  kept  at  his  peril,  until  satisfaction 
be  made  of  the  plaintiff's  demand  and  of  the  amerce- 
ment due  to  us  for  the  wrongful  detainer.  And  if  any 
debtor  is  bound  by  pledges  at  the  commencement  of  the 
attachment,  or  after,  and  the  debtor  does  not  acquit 
his  pledges  according  as  they  are  bound  for  him,  let 
the  pledges  be  immediately  distrained  to  satisfy  the 
plaintiff.  Nevertheless  let  earls  and  barons  found 
within  our  verge,  and  the  servants  of  our  household, 
be  summoned  for  debts,  before  they  are  distrained  or 
attached  by  their  bodies,  the  first  out  of  respect  for 
their  persons,  and  the  others  out  of  regard  for  our 


142  BRITTOK  ,  [I,  *69. 

service.  And  wherever  the  Marshal  is  to  execute  his 
attachments,  and  does  not  find  sufficient  distress  to  the 
value  of  the  demand  of  the  plaintiff,  he  shall  execute 
the  attachments  by  the  bodies,  whether  the  defendants 
be  clerks  or  laymen,  and  safely  keep  the  bodies  until 
they  submit  to  the  determination  of  the  law,  whether 
the  plaints  are  for  debt,  or  trespass,  or  felony. 

*32.  And  we  will  that  none  be  attached  by  our 
marshal,  except  where  the  debtors  are  especially  bound 
by  their  writing  to  the  jurisdiction  of  our  steward. 
Such  as  withdraw  themselves  out  of  our  verge  to  avoid 
being  attachable  by  our  marshal,  shall,  wheresoever 
they  are  again  found  within  our  verge,  be  answerable 
for  their  trespasses  or  felonies  committed  within  our 
verge,  though  not  in  the  same  place  where  they  are 
found.  If  any  one,  accused  before  our  steward  of  a 
trespass  or  felony,  can  prove  that  the  fact  was  not 
committed  within  our  verge,  or  that  he  w^as  not  found 
within  our  verge  when  he  was  attached,  in  such  cases 
we  will  that  such  exceptions  be  allowed  to  the  defend- 
ant. Execution  of  the  judgments  of  our  steward,  and 
attachments  within  our  verge  shall  be  made  by  our 
marshal,  and  without  the  verge  by  our  sheriffs  and  by 
virtue  of  our  writs. 

33.  A  person  may  be  indebted  several  other  ways 
besides  by  money  borrowed,  as  by  his  own  recognizance, 
or  by  that  of  iiis  ancestor,  who  has  acknowledged  in 
our  court  that  he  was  indebted  to  another  in  a  certain 
sum  of  money  to  be  paid  at  a  certain  day,  and  granted 
tjiat  if  he  should  not  pay  it,  the  sheriff  should  levy  it 


I,  *69  b.]  OF  DEBT.  143 

out  of  bis  lands  and  chattels.  And  by  virtue  of  such 
recognizances  made  in  our  court,  we  will  that  the  lands 
and  heirs  of  *the  recognizors  remain  bound,  whether 
the  heirs  are  especially  mentioned  as  bound  in  the 
recognizances  or  not ;  and  not  only  the  heirs,  but  the 
lands  and  tenements  of  the  recognizors,  into  whoseso- 
ever hands  they  come. 

34.  Also,  as  a  person  may  be  indebted  for  money 
borrowed,  so  he  may  likewise  be  indebted  by  reason  of 
any  movable  thing  borrowed  j^nd  not  returned  at  the 
day ;  and  of  such  things  the  value  and  damages  should 
be  demanded. 

35.  And  what  a  person  cannot  demand  of  his  debtors 
by  reason  of  their  deaths,  shall  be  demanded  against 
their  executors  ;  which  demand  need  not  in  every  case 
be  made  against  all  the  executors,  but  only  against 
such  as  administer  the  goods  and  chattels  of  the  de- 
ceased. There  are  however  some  debts,  which  shall 
not  be  pleaded  in  our  court,  or  in  any  lay  court,  as 
those  arising  from  testament  and  marriage,  that  is  to 
say,  concerning  chattels  left  in  the  possession  of  the 
testator,^  and  chattels  given   as  a    marriage  portion. 

^  The  annotator  in  M8.  X.  observes  upon  this,  that  will  and  in- 
tention not  carried  into  act  are  spiritual  matters ;  and  that  the 
will  and  conscience  of  a  testator  are  so  obscure  and  secret  that 
no  earthly  judge  can  be  cei'tified  thereof.  For  that  the  law  of 
this  land  determines  nothing  that  is  not  open  and  certain,  as 
where  an  intention  is  carried  into  effect  by  an  act.  '  But  the 
king,*  he  adds,  '  hath  sometimes  cognizance  of  devises,  not  of 
movable  chattels,  but  of  tenements  purchased  in  an  enfrancliised 
towp,  as  London  or  Northampton,  which  may  be  devised  in  like^ 


144  BllITTON.  [I.  *T0. 

But  as  to  chattels  of  the  deceased  of  which  he  was  not 
possessed  on  the  day  of  making  his  will,  such  as  debts 
owinj;  to  hira,  and  chattels  in  the  hands  of  others,  and 
also  chattels  promised  and  due  on  account  of  marriage, 
of  these  tlie  cognizance  shall  belong  to  our  court.  And 
if  any  debtor  die  without  making  any  testament,  *let 
those  into  whose  hands  the  goods  of  the  deceased  shall 
come  be  answerable  for  his  debts,  as  is  laid  down  in 
our  statutes  of  Westminster.  But  if  any  person  who 
dies  shall  simply  and  without  any  specialty  commit  his 
last  will  respecting  the  distribution  of  all  his  movables 
to  the  disposal  of  some  friend,  and  such  last  will  can 
be  proved,  this  shall  be  a  sufficient  testament. 

36.  When  any  debt  is  recovered  in  our  court,  judg- 

manner  as  movable  chattels,  because  burgesses  being  in  trade 
generally  employ  (enplaient)  the  half,  or  more,  of  their  goods  in 
their  houses  (herbergage),  the  purchase  whereof  they  may  de- 
vise, but  not  their  inheritance.  The  king  hath  therefore  of 
necessity  cognizance  thereof  as  of  a  thing  annexed  to  freehold. 
For  though  the  spiritual  judge  had  cognizance  of  such  tene- 
ments so  devised,  he  would  have  no  power  of  execution,  inas- 
much as  such  tenements  savour  more  of  freehold,  yea  and  of  fee 
and  seigniory  (oyl  e  de  fee  e  de  sr'),  and  testament  in  such  case 
is  in  lieu  of  charter.  Wherefore  such  testaments  ought  to  be 
solemnly  proved  in  the  boroughs,  as  is  customarily  done  in  Lon- 
don, not  by  proof  of  the  testament,  but  by  proof  that  the  testa- 
ment hath  been  proved  in  court  christian,  on  account  of  the 
disherison  done  by  false  testaments.'  The  writer  then  gives  the 
form  of  a  writ,  addressed  to  the  king's  bailiffs  of  Northampton, 
which  differs  little  from  the  writ  Ex  gravi  querela,  whicli  may 
be  seen  in  Reg.  Brev.  Orig.  244  h  ;  Vet.  Nat.  Brev.  85  h  ;  Fitzh. 
Nat.  Brev.  199. 


I,  *70  5.]  OF  DEBT.  145 

inent  and  execution  shall  be  had  according  to  the  or- 
dinance of  our  statutes,  and  from  him  who  has  nothing, 
nothing  shall  be  recovered. 

37.  There  is  also  a  kind  of  debt  due  to  persons  from 
their  servants  who  detain  from  them  their  property, 
and  refuse  to  give  an  account  thereof ;  in  Avhich  case 
the  plaintiffs  shall  have  remedy  according  to  the  or- 
dinance of  our  statutes.  And  if  any  servant  allege,  by 
way  of  exception,  that  he  has  given  in  his  accounts  to 
his  lord,  or  to  his  lord's  attorne}'',  and  that  the  lord  or 
the  attorney  has  his  rolls  and  other  memoranda  relat- 
ing to  the  matters  whereof  he  should  render  account ; 
in  such  case  if  he  can  verify  his  exception,  it  shall  be 
allowed,  unless  the  lord  redeliver  to  him  his  rolls  under 
the  servant's  seal.  In  cases  where  the  action  is  re- 
moved into  our  court  on  account  of  an  alleged  *\vrong 
of  the  first  auditors,  we  will  that  whatsoever  was  al- 
lowed before  the  first  auditors  shall  remain  allowed 
before  the  second,  so  that  it  shall  not  be  the  duty  of 
the  auditors  in  our  court  to  determine  anything  relat- 
ing to  the  account,  except  as  to  the  wrong  which  the 
first  auditors  may  have  done  to  the  servant.  And  we 
will  that  no  one  shall  be  obliged  to  render  an  account 
to  any  lord,  except  ourselves,  elsewhere  than  in  the 
neighborhood  where  he  was  his  bailiff. 

38.  There  are  also  other  personal  actions  of  which 
sheriffs  may  take  cognizance  by  virtue  of  our  writs  of 
Justicies^  concerning  torts  in  contracts,  as  where  a 
covenant  is  broken,  or  concerning  account,  or  to  en- 
force a  reasonable  aid  for  knighting  the  lord's  son,  or 


UQ  BRITTON.  [I,  *71. 

marrying  his  daughter,  or  a  right  to  take  water  at  an- 
other's well,  or  to  have  a  free  bull,  or  free  boar,  or  to 
have  common  at  a  watering-place  for  his  cattle  or  to 
take  reasonable  estovers,  or  to  have  a  way,  or  common 
of  fishery,  or  to  enforce  an  acquittance,  or  concerning 
gages  damaged  or  not  returned,  or  charters,  or  con- 
cerning suits  detained,  or  mills  wrongfully  erected,  or 
houses  or  folds,  or  other  such  nusances ;  and  many 
other  actions,  wherein  the  proceeding  is  by  distress  of 
chattels,  and  by  damages,  and  the  trial  is  by  juries. 


^CHAPTER  XXX. 

Of  the  Sheriff'' s  Toums. 

1.  There  are  some  articles  concerning  our  Crown  and 
the  breach  of  our  peace  of  which  sheriffs  may  hold 
plea  at  other  times  than  on  the  county  days,  and  in  a 
different  place  from  that  where  the  pleas  of  the  county- 
are  held.  These  pleas  are  called  the  tourns  of  the 
sheriff,  who  ought  to  hold  them  twice  in  the  year, 
within  every  hundred  of  his  county.  And  that  which 
before  the  sheriff  is  called  the  sheriff's  tourn,  is  in  the 
court  of  a  freeman  and  in  franchises,  and  in  our  hun- 
dreds, called  view  of  frankpledge,  where  a  more  spe- 
cial inquiry  is  made  concerning  those  whose  who  are 
not  in  any  tithing,  than  is  done  in  the  sheriff's  tourn. 

2.  At  these  tourns  all  the  freemen  of  the  hundred 
and  other  landholders  being  summoned  by  general 
summons  ought  to   appear,  except  clerks,  persons  in 


J,  *71  h.]    OF  THE  SHEEIFF'S  TOURNS.        147 

religion,  and  women.  At  which  day  let  the  sheriff 
cause  twelve  of  the  most  sage,  lawful,  and  sufficient 
men  out  of  the  whole  hundred  to  be  chosen,  and  to 
swear  they  will  present  the  truth  of  the  articles  here- 
inafter mentioned.  Afterwards  the  rest  shall  be  sworn 
by  dozens,  and  by  townships,  that  they  will  make  law- 
ful presentment  to  the  first  twelve  jurors  upon  the  ar- 
ticles wherewith  they  shall  be  charged  by  them.  Next 
it  shall  be  enjoined  them,  that  if  they  find  any  offender, 
from  whom  there  may  be  any  danger  of  life  or  limb, 
the  name  of  such  offender  be  secretly  presented. 
Afterwards  the  following  articles  shall  be  delivered  to 
the  twelve  first  jurors,  who  are  to  be  charged  upon 
their  oaths  that  they  will  lawfully  present  the  wrongs 
and  offences  which  they  *shall  find  upon  inquir}'^  from 
the  townships  by  means  of  these  articles. 

3.  Of  mortal  enemies  of  the  king  or  queen,  of  their 
children,  and  of  those  consenting  to  them  ;  of  counter- 
feiters of  the  king's  seal  and  of  his  money  ;  of  homicides 
and  murderers ;  of  those  who  feloniously  set  fire  to  the 
houses  or  corn  of  others ;  of  burglars,  robbers,  and 
thieves  ;  of  breakers  of  the  king's  prison  ;  of  ravishers  of 
women  ;  of  outlaws  and  abjurors  of  the  realm  who  are 
returned  ;  of  sorcerers  ;  and  sorceresses  ;  of  apostates 
and  heretics ;  of  traitors  ;  of  poisoners ;  of  cutpurses  ;  of 
usurers ;  of  salesmen  knowingly  buying  and  selling 
stolen  meat;  of  those  who  knowingly  bleach  skins  of 
stolen  beasts ;  and  of  menders  of  clothes  knowingly  buy- 
ing stolen  clothes  and  turning  them  into  other  shape?  ; 
of  treasure  hidden  and  found  in  the  earth  ;  of  hue  and 


148  BRITTOK  [I,  *72. 

cry  wrongfully  raised,  or  duly  raised  and  not  pursued ; 
of  waters  stopped  or  narrowed  or  turned  from  their 
course;  of  roads  stopped,  narrowed,  or  turned;  of 
boundaries  removed  or  wrongfully  altered  ;  of  walls, 
houses,  gates,  marl-pits,  ditches,  or  other  nusances  raised 
or  made  in  any  common  way  to  the  annoyance  of  the 
same  way  and  to  the  danger  of  passengers  ;  of  petty 
thieves,  who  shear  or  *flay  sheep  or  other  cattle  in  the 
night  to  steal  their  skins ;  of  those  who  take  thefbote ; 
and  of  those  who  have  made  a  prison  in  their  houses ; 
or  committed  hamsoken,  or  breach  of  pound  ;  and  of 
offenders  in  parks  or  in  vivaries ;  of  takers  of  others' 
pigeons  ;  of  breach  of  the  assise  of  bread  and  beer,  and 
of  those  who  buy  and  sell  by  weights  and  measures  not 
according  to  the  assise  ;  of  affrays,  of  brawlers,  and  of 
bloodshed  ;  of  watches  not  kept ;  of  the  king's  high- 
ways not  widened ;  of  those  who  have  detained  ap- 
provers in  any  other  prison  than  in  our  custody,  or 
other  felons  elsewhere  than  in  our  prison  above  a  day 
and  night ;  of  new  franchises,  customs,  or  instruments 
of  correction,^  set  up  since  the  last  tourn,  in  water  or 
land  ;  of  waif,  or  wreck  of  sea  found  and  retained  ;  of 
bridges  and  highways  broken,  and  who  ought  to  re- 
pair them  ;  of  rights  belonging  to  the  king  withheld, 
as  wards,  marriages,  reliefs,  demesnes,  advowsons  of 
churches,  and  all  kinds  of  suits ;  and  of  those  who 
claim  royal  franchises  and  povvers  of  punishment ;  and 
of  those  of  twelve  years  old  and  upwards  in  the  hun- 
dred who  have  not  come  to  the  tourn. 

1 '  Gallows,  pillory,  tumbrel,  or  the  like.'     (Note  in  MS.  N.) 


I,  *72  5.]     OF  THE  SHERIFF'S  TOURNS.        149 

4.  All  these  articles  shall  also  be  inquired  of  at  the 
view  of  frankpledge  ;  and  the  following  articles  besides ; 
whether  all  the  headboroughs  are  come  to  the  view, 
and  whether  they  have  their  tithings  complete ;  *of 
those  of  twelve  years  old  or  upwards,  except  clerks, 
and  knights  and  their  children,  and  women,  who  are 
not  in  tithings,  and  of  their  receivers,  and  of  whose 
mainpast  they  are  ;  ^  of  vagrants  through  the  country 
Avho  are  not  of  any  one's  mainpast,  and  are  of  sus- 
picious character. 

5.  "When  the  townships  have  given  in  their  verdict 
to  the  first  jurors,  and  they  are  certified  of  the  truth, 
let  the  first  jurors  immediately  go  and  deliver  up  their 
presentment  to  the  sheriff,  such  as  they  will  abide  by 
without  being  questioned,  and  let  them   exhibit  the 


1  The  annotator  in  MS.  N  observes  here,  that  frankpledge  was 
so  called,  '  because  villains  and  naifs  ought  not  to  be  in  tithings, 
secundum  quosdam.'  It  is  not  improbable  that  the  term  fi-ank, 
or  free,  pledge  arose  from  a  misintei'pretation  of  the  Saxon  Frio- 
borh,  or  pledge  of  peace.  It  is  true  however  that  the  Anglo- 
Saxon  tithings  were  composed  of  '  freemen  ; '  (Leg.  Cnut.  20 ; 
Cart.  Will.  I,  de  stat.  14)  ;  but  the  churl  was  in  Saxon  nomen- 
clature '  free.'  In  the  laws  of  William  I.  it  is  provided  that  '  all 
the  villains  shall  be  in  frankpledge.'  Leg.  Will.  I.  20.  There 
can  be  no  doubt  that  the  peasants  were  the  principal  subjects  of 
this  regulation  when  in  its  vigour,  the  military  tenants,  the 
liberi  homines  of  Norman  law,  being  exempt.  See  Bracton  124  b ; 
Fleta  62  (§  10).  The  doubt  above  mentioned  as  to  the  admission 
of  villains  seems  to  show  that  at  the  time  when  it  was  enter- 
tained either  the  institution  of  frankpledge  was  already  in  decay, 
or  the  peasants  were  in  a  great  measure  enfranchised. 


150  iJlliTTOK.  [1,  *73. 

presentments  for  felony  privately,  and  the  other  pre- 
sentments openh'. 

6.  If  any  person  indicted  of  felony  be  present,  he 
shall  be  immediately  apprehended  and  carried  to  our 
gaol,  unless  it  be  any  thief  or  robber  in  possession  of 
his  theft  '  handhaving  and  backbearing,'  and  the 
sakeber  be  present  to  make  his  suit,  in  which  case  let 
the  evidence  be  examined,  and  judgment  executed 
upon  him,  if  the  sakeber  verifies  the  thing  as  his  own, 
or  as  stolen  or  robbed  out  of  his  custody  ;  and  let  the 
punishment  be  according  to  the  quantity  of  the  thing 
stolen  as  before  is  mentioned.  As  to  such  of  the  persons 
indicted  as  shall  not  be  found  present,  let  the  persent- 
ment  be  sealed  under  the  seals  of  the  twelve  persent- 
ors.  And  the  sheriff  shall  cause  them  to  be  apprehend- 
ed, and  keep  such  as  are  not  bailable  safe  in  prison 
until  the  ^first  gaol  delivery,  and  bail  those  who  are 
bailable  until  the  same  time. 

7.  What  persons  are  bailable  and  what  not,  is  men- 
tioned in  our  statutes.  Besides,  those  persons  are  not 
bailable,  who  are  indicted  or  appealed  of  compassing 
our  death,  as  is  above  said  ;  nor  those  who  are  appre- 
hended b\^  the  judgment  of  our  justices,  as  persons  con- 
victed of  open  deceit  committed  in  our  court,  nor  those 
who  are  apprehended  for  redisseisin,  nor  those  who  by 
judgment  of  our  court  are  committed  to  prison  for 
arrears  of  accounts,  nor  those  who  are  taken  for  rape 
of  women,  or  b}^  statute  merchant,  nor  those  who  are 
convicted  of  trespassing  in  parks  and  vivaries,  or  of 
impeding  the  execution  of  judgments  of  our  court,  nor 


I,  -^^-TS  h.-]     OF  THE  SHERIFF'S  TOURNS.         151 

those  who  have  carried  off  religious  women  from 
their  convent,  nor  those  who  have  carried  off  infants 
whose  marriages  belong  to  others. 

8.  As  to  the  presentments  made  of  boundaries 
removed,  ways  and  waters  obstructed,  and  such  other 
personal  trespasses,  let  the  trespassers,  if  they  are 
present,  immediately  answer  thereto  ;  and  if  they  will 
not,*  or  if  they  are  not  present,  then  let  the  twelve 
presentors  be  commanded  immediately  to  go  and 
remedy  such  nusances,  if  they  have  been  done  since  the 
last  tourn,  by  restoring  matters  to  their  lawful  and 
usual  state.  And  if  such  jurors  have  wrongfully  ag- 
grieved any  persons  in  their  absence  by  their  present- 
ment, in  such  case  the  persons  ^aggrieved  shall  have  an 
action  to  be  reinstated,  by  plaint  in  the  county  court,  or 
by  our  writ,  if  necessary,  either  against  all  the  twelve 
presentors  jointly,  or  against  any  of  them  severally. 
And  if  the  plaintiffs  cannot  make  good  their  plaints, 
then  let  the  defendants  recover  their  damage,  and  the 
plaintiffs  be  in  mercy. 

9.  Afterwards  let  all  those  be  amerced  who  shall  be 
named  as  trespassers  by  the  presentments,  and  those 
^Iso  of  twelve  years  and  upwards  who  have  not  ap- 
peared, except  prelates,  earls,  barons,  persons  of  religion, 
and  women,  and  except  also  those  who  are  not  living 
or  constantly  resident  in  the  hundreds,  although  they 
may  have  dwellings  there.  As  to  breach  of  assises, 
let  the  proceedings  be  as  mentioned  in  the  next  chap- 
ter. In  views  of  frankpledge,  let  the  headboroughs  be 
amerced,  who  shall  not  have  their  tithings  complete, 


152  DRITTON.  [I,  *74. 

there  present,  unless  they  are  excusable  by  reason  of  the 
death  of  any  one  or  more.  Also  let  those  be  amerced 
who  are  twelve  years  old  and  upwards,  and  who  ought 
to  be  in  a  tithing  and  have  not  been,  and  those  also  of 
whose  main  past  they  are  and  have  been  ;  but  if  any 
person  be  elsewhere  in  a  tithing,  it  is  sufficient. 

10.  When  any  one  is  to  be  admitted  into  a  tithing, 
iirst  he  shall  find  pledges  to  our  bailiffs,  that  he  will 
be  amenable  to  justice  in  *our  court  as  often  as  there 
shall  be  occasion,  and  shall  take  the  oath  of  fealty  to 
us  and  to  our  heirs  ;  and  let  him  be  delivered  to  his 
pledges,  and  let  his  name  and  the  names  of  his  pledges 
be  enrolled. 

11.  Fealty  shall  be  sworn  in  these  words  :  Hear  this 
you,  N.,  bailiff,  that  I,  P.,  from  this  day  forward  will 
be  faithful  and  loyal  to  our  lord  E.  king  of  England 
and  his  heirs,  and  will  bear  unto  them  faith  and  loyalty 
of  life  and  limb,  of  body  and  chattels,  and  of  earthly 
honour,  and  will  neither  know  nor  hear  of  their  hurt 
or  damage,  but  I  will  oppose  it  to  the  best  of  my 
power ;  so  help  me  God  and  the  Saints. 


I,  *74  h.]  OF  MEASURES.  153 


CHAPTEE  XXXI. 

Of  Measures. 

1.  We  will  that  no  one  have  measures  in  our  realm 
except  ourselves,  but  that  every  one  take  his  measures 
and  his  weights  from  our  standards,  as  of  bushels,  gal- 
lons, pounds,  ells,  and  other  such  measures.^ 

2.  And  we  will  that  the  assise  of  bread  be  observed 
in  this  manner.^  When  the  quarter  of  wheat  is  sold 
for  twelvepence,  the  farthing  loaf  of  wastel  bread  white 
and  well  baked  shall  weigh  61b.  16s. ;  coket  bread  of 
the  same  corn  and  the  same  bolter  shall  weigh  more 
than  wastel  by  two  shillings  ;  bread  of  a  lower  price 
than  coket  and  of  another  bolter  shall  weigh  more 
than  the  wastel  by  5*. ;  *simnel  bread  shall  weigh  less 
than  the  wastel  bread  by  2*.,  because  it  shall  be  twice 
baked  ;  the  farthing  loaf  of  entire  wheat  shall  weigh 
one  and  a  half  of  coket ;  bread  of  trayt  shall  weigh 
two  wastels ;  bread  of  all  corn  shall  weigh  two  cokets. 
When  wheat  is  sold  for  186?.  the  quarter,  then  the 
farthing  loaf  of  wastel  shall  weigh  41b.  10*.  8d. ;  when 

^  As  to  the  measures  used  in  England  in  the  thirteenth  century, 
and  their  respective  quantities,  see  Assisa  de  Ponderibus  (Stat, 
incert.  temp.),  Flet,  72,  73. 

2  It  should  be  observed,  that  the  same  standard  of  weight  is 
used  for  bread  and  money.  The  solidus  or  shilling  (s.),  is  the 
20th,  and  the  denarius,  penny  or  pennyweight  (d.),  the  240th 
part  of  a  pound.    See  below,  s.  5. 


154  BKITTOK  [I,  *75. 

for  2s.,  it  shall  weigh  68s. ;  when  for  2s.  6d.,  the 
weight  shall  be  54s.  ^d. ;  when  for  3s.,  the  weight 
shall  be  48s. ;  when  for  3s.  6d.,  the  weight  shall  be 
42s.;  when  for  4s.,  the  weight  shall  be  34s. ;  when  for 
4s.  6<^.,  then  30s. ;  when  for  5s.,  the  weight  shall  be  27s. 
2^d. ;  when  for  5s.  6d.,  it  shall  be  24s.  8;^^. ;  when  for 
6s.,  the  weight  shall  be  21s.  S^d. ;  when  for  6s  6d.,  it  shall 
be  20s.  lid. ;  when  for  7s.,  the  weight  shall  be  19s.  Id. ; 
Avhen  for  7s.  Qd.,  the  weight  shall  be  18s.  1^^. ;  when 
for  8s.,  the  weight  shall  be  17s.  ;  when  for  8s.  6d.,  the 
weight  shall  be  16s.  ;  when  for  9s.,  then  15s.  0\d. ; 
when  for  9s  6d.,  the  weight  shall  be  14s.  4^6?. ;  when 
for  10s.,  then  *13s.  Sd. ;  when  for  10s.  6d.,  the  weight 
shall  be  12s.  ll^d. ;  when  for  lis.,  then  it  shall  be  12s. 
Ad.j  when  for  lis.  6c?.,  then  the  weight  shall  be  lis. 
lOd. ;  when  for  12s.,  the  weight  shall  be  lis.  4:d.  ;  so 
that  the  weight  of  the  loaf  shall  be  changed  for  every 
6d.  rising  or  falling  in  the  quarter  of  corn. 

3.  The  baker  may  still  gain  out  of  every  quarter  of 
wheat  threepence,  and  the  bran  and  two  loaves  of  the 
value  of  two  sterlings  ^  for  his  oven,  three  halfpence 
for  the  wages  of  his  three  servants,  and  one  halfpenny 
for  the  wages  of  two  boys,  and  one  halfpenny  for  salt 
and  for  the  bolter.  We  will  that  if  a  baker  be  con- 
victed of  false  weigh t,2  where  there  is  found  a  deficiency 

1  A  sterling  appears  to  be  the  same  as  a  penny.  '  Denarius 
Anglicanus,  qui  vocatur  sterlingus,  rotundus  et  sine  tonsura, 
ponderabit  xxxii.  grana  frumenti  in  medio  spice.'  Assisa  de 
ponderibus.     (Stat,  incert.  temp.)  ;  Fleta  72.  73. 

2  Similar  varieties  of  readings  to  those  mentioned  in  the  note 


I,  *75  5.]  OF  MEASITRES.  155 

of  the  weight  of  one  farthing  in  the  weight  of  two 
shillings,  he  shall  be  amerciable ;  and  for  any  greater 
default  he  shall  be  set  in  the  pillory. 

*4.  The  assise  of  beer  shall  be  observed  in  this 
manner.  When  a  quarter  of  wheat  is  worth  from 
three  shillings  to  forty  pence,  and  a  quarter  of  barley 
from  twenty  pence  to  two  shillings,  and  a  quarter  of 
oats  sixteen  pence,  then  two  gallons  of  beer  shall  be 
sold  in  cities  and  boroughs  for  one  penny,  and  in 
country  places  three  gallons  of  beer  for  one  penny  ; 
and  when  three  gallons  are  sold  in  cities  and  boroughs 
for  one  penny,  then  four  shall  be  sold  without  for  a 
penny  ;  and  when  the  quarter  of  barley  shall  be  sold 
for  two  shillings,  three  gallons  of  beer  shall  be  worth 
a  penny ;  thus  the  market  of  beer  shall  rise  and  fall 
according  to  the  current  price  of  corn. 

5.  And  whereas  Ave  have  entrusted  one  of  our  officers 
with  the  custody  of  the  standards  and  samples  of  our 
-weights  and  measures,  we  wall  that  this  officer  shall 
have  jurisdiction  and  cognizance  of  false  weights  and 
measures  throughout  our  verge,  wheresoever  we  be 
in  our  territory,  within  franchise  and  without,  and  to 
burn  such  as  he  shall  find  false,  and  to  amerce  and 
otherwise  punish  those  who  have  made  use  of  such 
weights  or  measures.  We  have  also  appointed  him  to 
deliver  standards  to  all  those  who  require  them,  where- 
above  are  also  found  in  the  several  copies  of  the  Latin  Assisa 
panis,  (Stat,  iiicert.  temp.)  See  Statutes  of  the  Realm,  (Rec. 
Com.)  p.  200.  See  also  Fleta  73.  The  Assisa  panis  was  formerly 
printed  as  a  statute  of  the  51st  year  of  Henry  III. 


156  BRITTON.  [I,  *r6. 

of  the  pound  shall  weigh  twenty  shillings  of  current 
money  ;  the  ell  shall  be  two  cubits  and  two  inches ;  a 
bushel  shall  contain  two  hundred  pounds  in  pence, 
and  a  gallon  twenty-five  pounds.  Merchants  *neverthe- 
less  shall  have  their  weights  as  far  as  regards  avoirdu- 
pois ^  according  to  their  customs. 

6.  When  the  officer  of  the  measures  is  to  perform  his 
office,  let  him  do  it  in  this  manner.  First  let  him  go 
with  his  standards  from  market  to  market,  wherever 
he  shall  find  any  within  the  verge,  and  immediately 
summon  the  bailiffs  to  come  before  him  to  perform 
what  he  shall  enjoin  them  on  our  behalf.  And  if  they 
will  not  come,  or  if  they  come  and  will  not  be  obedient 
to  him,  let  the  franchise  of  the  market  be  taken  into 
our  hand,  if  it  is  held  by  any  other  than  by  us ;  and 
if  they  are  our  bailiffs,  let  them  be  punished  by  im- 
prisonment and  fine.  If  the  bailiffs  appear  as  the}'^ 
ought  to  do,  then  let  them  be  commanded  that  they 
cause  to  be  brought  before  him  all  the  bushels  and  half 
bushels,  and  quarts,  gallons,  and  half  gallons,  and  all 
other  measures  whereby  people  have  bought  or  sold  in 
the  town,  and  from  every  baker  a  loaf  of  every  sort, 
and  all  the  bakers  and  brewers  of  the  town,  and  the 
taverners,  and  all  those  to  whom  the  measures  belong, 
and  other  good  people  of  the  town,  by  whom  he  may 
inquire  the  truth  concerning  the  articles  of  his  office. 
And  those  who  are  summoned  and  do  not  come,  if  the 
summons  be  proved,  shall  be  in  mercy.  "When  they 
are  come  before  him,  he  shall  immediately  cause  twelve 
*  See  above,  c.  xxii.  s.  22,  and  note  there,  p.  80. 


I,  *76  5.]  OF  MEASURES.  157 

of  the  most  lawful  householders  to  be  sworn,  that  they 
-will  present  the  truth  of  the  articles  wherewith  they 
shall  be  charged  on  our  behalf. 

*7.  The  articles  shall  be  these  :  whether  the  lord  of 
the  franchise  hath  set  up  a  market  there  of  his  own 
authority,  or  by  our  warrant,  and  if  by  our  charter, 
whether  he  hath  the  franchise  of  view  of  frankpledge 
or  not,  and  whether  he  has  the  correction  of  the  breach 
of  assise  of  bread  and  beer,  and  whether  he  has  the  in- 
struments of  punishment  appendant  to  such  franchises, 
as  gallows,  pillory,  and  tumbrel.  And  if  it  be  found 
that  he  has  no  market  oi*  franchise  by  our  warrant, 
the  franchise  shall  be  seised  into  our  hand,  and  the 
sheriff  of  the  place  shall  be  responsible  to  us  for  the 
issues.  Likewise  if  he  has  the  franchise  of  view,  but 
no  gallows,  the  view  shall  be  seised  into  our  hands, 
and  also  the  correction  of  breach  of  assise,  for  want  of 
other  instruments  of  punishment.^ 

8.  Afterwards  let  inquiry  be  made  concerning  bakers 
and  brewers,^  who  have  baked  and  brewed  out  of  the 
right  assise,  how  many  times  they  have  been  amerced, 
and  how  many  times  sentenced  to  the  pillory,  and  for 
what  amount  of  offence  they  were  amerced  or  put  in 
the  pillory;  and  for  every  illegal    judgment  let  the 

^  Tliis  passage  is  obscure,  and  possibly  corrupt.  The  fourches 
or  gallows  would  only  be  required  where  the  lord  had  jurisdic- 
tion of  infangthief. 

^  It  will  be  observed,  that  the  word  in  the  original  implies  that 
the  trade  was  carried  on  by  females.  So  in  the  Latin  Assisa 
pfinis  (Stat.  inc.  temp.)  the:  word  is  braciatrix. 


158  BRIXTON.  [I,  *T7. 

franchise  be  seised  into  our  hands.  Let  inquiry  after- 
wards be  made  whether  any  man  or  woman  has  been 
destroyed  in  consequence  of  the  instruments  of  punish- 
ment being  faulty  or  out  of  repair,  and  if  such  default 
be  found,  the  franchise  shall  be  seised  into  our  hands ; 
and  if  our  bailiffs  are  in  fault,  they  shall  be  punished 
by  imprisonment  and  fine. 

9.  Afterwards  let  it  be  inquired  concerning  tavern- 
ers,  who  since  the  last  eyre  in  the  ^county  have  sold 
wine  contrary  to  the  legal  assise,  and  how  much  their 
profit  above  the  right  assise  amounts  to;  and  if  they 
are  living,  let  them  be  punished  by  pillor}'^  and  fined  in 
double  the  value  of  their  gain.  Afterwards  let  inquir}^ 
be  made  concerning  those  who  buy  by  one  kind  of 
measure,  and  sell  by  a  false  measure  of  less  quantity  ; 
and  let  them  be  punished  as  the  sellers  of  wines  ;  and 
likewise  those  who  shall  be  convicted  of  false  ells  and 
of  false  weights ;  also  salesmen  and  cooks,  who  make  a 
practice  of  selling  to  passers-by  bad  meat,  tainted  or 
diseased,  or  otherwise  dangerous  to  the  health  of  man. 
Likewise  forestallers,  who  raise  the  market  price  of 
victuals  by  their  dealings  outside  the  market, 

10.  Afterwards  let  the  weights  and  measures  be 
severally  examined,  and  the  good  ones  be  restored  to 
the  owners,  and  the  false  ones  burned.  And  let  the 
bakers  and  brewers  convicted  of  breaking  the  assise 
be  punished  in  proportion  to  their  offence  either 
by  amercements  or  pillory.  And  let  our  officer  of 
measures  without  delay  cause  the  estreats  and  the  en- 
rollment of  his  proceedings  to   be  delivered  to   the 


I,  *77  h.-\  OF  VILLENAGE.  159 

Steward  of  our  household,  who  shall  speedily  cause 
such  estreats  to  be  levied  by  the  marshal,  or  by  sum- 
mons out  of  our  Exchequer. 

Here  ends  the  subject  of  pure  personalty^  and  hegins 
that  of  the  condition  of  villaitiis. 


*CHAPTEIl  XXXII. 

Of  Villenage. 

1.  We  have  above  in  part  treated  of  the  law  of  free 
persons ;  we  must  now  treat  of  the  condition  of  villains. 
This  condition  was  of  ancient  time  changed  from  free- 
dom to  bondage  by  the  constitution  of  nations,  and  not 
by  the  law  of  nature,  as  it  stood  at  the  time  of  the  flood 
and  earlier,  when  all  things  were  common  to  every 
one,  and  all  men  were  entirely  free,  and  lived  accord- 
ing to  the  law  of  nature.  But  from  the  increase  of 
mankind  and  the  appropriation  of  goods  which  before 
were  common,  battles  arose  in  divers  places  in  the 
world,  and  to  avoid  bloodshed  and  the  perilous  chances 
of  battle,  it  was  then  ordained  by  the  constitution  of 
nations  that  men  should  not  kill  one  another,  but  when- 
ever one  could  take  another  in  battle,  that  the  person 
taken  should  for  ever  remain  a  bondman  to  him  who 
took  him,  to  do  with  him  and  all  his  issue  that  should 
proceed  from  him  whatsoever  he  would,  as  with  his 
beast  or  chattel,  to  give,  to  sell,  and  to  kill.  After- 
wards it  was  ordained,  on  account  of  the  cruelty  of 
some  lords,  that  no  one  should  kill  them,  but  that  their 


160  BRITTON.  [I,  *78. 

lives  and  limbs,  as  well  as  those  of  free  men,  should  be 
under  the  protection  of  kings  and  princes.^  Whence 
the  law  is  this,  that  whosoever  kills  his  villain,  shall 
bear  the  same  judgment  as  if  he  had  killed  a  free  man. 
2.  There  is  another  kind  of  naifs  who  are  not  naifs 
by  ancient  birth,  but  are  properly  villains,^  such  as  *rree 

1  '  Although  the  property  of  villains  is  in  their  lord,  yet  he 
may  not  kill  them,  inasmuch  as  life  and  limb  belong  to  the  king, 
wlio  has  in  every  subject  a  sort  of  remote  fee  by  title  of  seignory 
(qi  ad  en  chescun  homme  auxi  come  un  fee  sutyl  en  noun  de 
seignurie).  The  lord  is  therefore  in  the  position  of  a  mesne  be- 
tween his  bondsman  (serf)  and  the  king,  and  ought  to  treat  his 
villain  in  due  manner  as  for  his  employment,  and  not  for  his 
destruction  (pur  lui  enprower  e  ne  mie  dampnier.'  Note  in 
MS.  iV. 

2  The  annotator  in  MS.  iV.  distinguishes  between  naifs,  villains, 
and  serfs  in  the  following  way  :  '  Naif  is  he  that  has  come  of 
such  lineage  that  tliey  have  been  in  servitude  for  several  genera- 
tions (qe  tote  voirs  de  eve  e  de  treve  unt  este  en  servage). 
Villain  is  he  that  has  come  afi'esli  into  servitude,  from  which  he 
cannot  depart  though  he  be  of  a  free  stock.  Serf  is  lie  who  is  not 
absolutely  a  villain,  nor  absolutely  free,  but  is  de  facto  in  servi- 
tude, as  a  freeman  who  marries  a  nief  and  enters  into  the  villain 
tenement,  and  does  to  his  wife's  lord  the  villain  customs  which 
belong  to  the  land  held  in  the  villenage.  Wherefore  this  free- 
man and  the  issue  he  lias  by  the  nief,  are  serfs  de  facto  and  free- 
men dejure,  and  are  called  serfs  for  the  servitude  in  which  they 
are.  Wherefore  if  the  issue  of  this  freeman  remains  in  servi- 
tude, and  his  issue  tlie  same  all  their  lives,  and  so  on  to  the 
fourth  degree,  the  fourth  will  be  a  villain  for  ever,  and  tliose 
who  come  of  him.'  I  do  not  know  any  other  autliority  for  this 
last  statement,  which  is  inconsistent  witli  the  text  of  Britton, 
(see  below,  ss.  3,  19.)  but  may  probably  have  pgreed  well  with 
the  earlier  practice.     (See  note  on  sect.  4.)     The  whole  passage. 


I,  ^78.]  OF  yiLLENAGE.  161 

men  who  have  acknowledged  themselves  in  our  court 
to  be  villains,  or  who  have  been  in  any  manner  con- 
victed as  villains  by  plea  under  our  writ  of  Naifty. 
Beside  those  mentioned,  there  are  no  other  kinds  of 
villains. 

3.  With  respect  to  those  who  by  reason  of  any  tene- 
ment have  made  redemption  of  blood  ^  or  done  other 
villain  services,  although  they  and  their  ancestors  have 
performed  such  services  from  one  generation  to  an- 
other,^  if  any  one  sprung  from  such  a  stock  has  fled 
from  his  lord,  and  is  demanded  by  him  as  his  villain, 
and  such  fugitive  can  prove  his  stock  to  be  free  by 
good  inquest  of  the  neighbourhood,  and  that  the  lord 
€laiiiiing  him  was  not  seised  of  him  and  his  ancestors 

as  compared  with  the  other  authorities,  shows  the  uncertain  and 
fluctuating  condition  both  of  the  law  on  this  subject,  and  of  the 
meaning  of  the  terms  employed. 

1 '  Redemption  of  blood '  is  the  same  as  mereheta  or  merchetum, 
•called  in  Fleta,  merchetum  sanguinis  (Fie.  193) ,  a  customary 
payment  made  by  a  tenant  for  license  to  give  his  daughter  in 
marriage.  This  custom  was  considered  a  special  mark  of  tenure 
in  villenage.  (Brae.  26,  195,  208  b  ;  Littleton,  Tenures,  ss.  174, 
^09). 

2  The  annotator  in  MS.  N,  in  a  note  upon  Bracton,  c.  11,  has 
the  following  explanation  of  the  expression  of  the  text :  '  Unum 
«st  genus  hominum,  qui  dicuntur  villici  sive  rustici  et  nativi  ex 
avo  et  tritavo  ;  unde  Gallice  dicitur,  vileyn  de  eyve  e  de  trey  ve  ; 
quia  villici  sunt  personaliter.'  It  will  be  seen  that  the  annotator 
himself  uses  the  phrase  in  the  note  last  cited.  Coke  has  a  dif- 
ferent explanation.  See  Coke  Lit.  25  b.  The  same  expression  is 
found  in  the  Year  Books.  Hil.  1  Edw.  II.  p.  4. ;  Paseh.  15  Edw.  II. 
p.  464. 


1G2  BRITTOK  [I,  *78  5. 

as  his  villains  by  reason  of  their  bodies,  but  by  reason 
of  the  tenement  which  they  held  of  him  in  villenage ; 
in  such  case  judgment  shall  be  given  against  the  lords. 
For  justice  will  not  allow  that  villenage,  by  any  long 
seisin  of  a  servile  tenement,  shall  make  any  freeman  a 
bondman  ;  nor,  on  the  other  hand,  that  long  seisin  of 
a  free  tenement  shall  change  the  condition  of  a  villain 
into  free  estate.  So  that  none  can  be  a  villain  except 
by  birth,  or  by  recognizance.  Nor  can  one  be  more  a 
villain  than  another ;  for  they  are  all  of  equal  condi- 
tion,— whosoever  is  a  bondman,  is  as  absolutely  a  bond- 
man as  any  other.^ 

4.  Nevertheless  all  who  are  begotten  by  villains  are 
not  bondmen,  for  no  one  begotten  by  a  bondman  of  a 
free  woman  out  of  *matrimony  is  a  bondman,  although 

1  The  doctrine  that  tliere  is  no  distinction  of  condition  among 
those  not  accounted  free,  appears  to  have  been  imported  by 
Bracton  or  his  predecessors  from  the  civil  law.  '  In  servorum 
conditione  nulla  est  differentia.'  (Justin,  tnst.  li.  1.  tit.  3.  §  5.) 
In  Anglo-Saxon  and  early  Norman  times  nothing  is  more  re- 
markable than  the  gradations  of  servitude  among  the  peasants. 
In  Domesday  Book  the  various  classes  inferior  to  the  liberi 
liomines  (villani,  bordarii  cotseti,  &c.)  are  clearly  distinguished 
from  the  bondmen  or  slaves  (servi).  In  Glanvill  (li.  5.  s.  4.)  tlie 
word  servitus  is  used  as  equivalent  to  villenagimn  or  nativitas, 
but  I  think  that  the  term  servus  is  not  employed,  the  various  ex- 
pressions being  in  villenagium  positus  natimis  (li.  5.  passim), 
and  rusticus  (11.  14.  c.  1).  In  Bracton  and  Fleta  servus  nativiis, 
and  villanus  appear  to  be  synonymous.  This  confusion  of 
ancient  distinctions  was  pointed  out  in  the  fourteenth  century 
by  Andrew  Home  in  the  Mirror  of  Justices.  (Mirror,  c.  2.  s.  28. 
p.  169  ;  c.  5.  s.  1.  pp.  291,  295.) 


I,  *7S  5.]  OF  VILLENAGE.  163 

it  happen  that  the  issue  be  afterwards  born  within 
matrimony.  Nor  shall  he  be  a  bondman  who  was  be- 
gotten on  a  bondwoman  in  matrimony,  so  as  the 
father  be  free.^ 

5.  Where  any  one  is  by  birth  a  bondman,  be  shall 
be  merely  the  chattel  of  his  lord  to  give  and  sell  at  his 
pleasure.  But  as  bondmen  are  annexed  to  the  freehold 
of  the  lord,^  they  are  not  devisable  by  testament  ;  and 
therefore  Holy  Church  can  take  no  cognizance  of 
them  in  Court  Christian,  although  devised  in  a  testa- 
ment. 

1  In  Glanvill's  time  the  children  followed  the  status  of  the 
mother,  according  to  the  rule  of  the  civil  law  :  '  Servi  sunt  qui 
ex  ancillis  nostris  nascuntner'  ;  (Dig.  li.  1.  tit.  5.  1.  5.)  and  the 
free  husband,  if  he  adopted  his  wife's  estate,  and  lived  upon  a 
tenement  held  by  her  in  villenage,  forfeited  '  his  law.'  (Glan.  11. 
5.  c.  6.)  In  the  time  of  Bracton,  if  the  father  was  a  freeholder, 
and  tlie  children  were  born,  in  librero  toro,  they  were  free  ;  but 
if  the  husband  adopted  his  wife's  estate,  and  the  children  were 
born  in  villenagio,  they  followed  their  mother's  condition. 
(Brae.  5, 193  6.)  The  more  liberal  rule  stated  in  the  text  prevailed 
in  later  times.     (Littleton,  Tenures,  s.  187.) 

2  It  should  not  pass  without  notice,  that  there  is  no  mention  in 
Breton  or  in  the  other  earlier  authors  (so  far  as  lam  aware)  of  tlie 
class  of  bondman  described  by  Littleton  as  villains  in  gross.  (Lit- 
tleton, Tenures,  s.  181.)  Examples  may  be  found  of  villains  being 
transferred  in  the  thirteenth  century  from  one  lord  to  anotlier 
without  the  soil  on  which  they  lived  ;  but  tliey  were  probably 
held  to  become  annexed  to  the  new  manor  upon  which  they 
were  settled.  The  Mirror  agrees  with  our  author  in  treating 
villains  as  always  annexed  to  the  freehold.  (Mirror,  c.  2.  s.  2H. 
p.  166.)  Servitude,  as  a  personal  relation,  appears  to  have  beeu 
then  unknown  in  England. 


164  13R1TT0X.  [I,  *79. 

6.  A  villain  may  recover  his  freedom  several  ways, 
as  if  his  lord  enfeoff  him  of  any  tenement  to  him  and 
his  heirs,  whether  he  receive  his  homage  or  not  ;  for 
since  it  is  the  lord's  pleasure  that  his  bondman  shall 
have  heirs  of  his  own  other  than  the  lord,  and  that  his 
heirs  shall  succeed  to  his  inheritance,  it  sufficiently  ap- 
pears that  he  intends  his  bondman  have  the  status  of 
a  freeman.  A  bondman  also  becomes  free  if  he  marries 
his  lady,  as  well  as  a  nief  when  her  lord  marries 
her  ;  for  otherwise  so  great  inconvenience  would 
ensue,  that  the  heir  should  be  villain  to  himself,  and 
the  land  should  escheat  to  the  chief  lord,  who  would 
hold  the  heir  as  his  villain,  when  perhaps  neither  he 
nor  any  of  his  lineage  were  ever  so.^  But  if  a  villain 
espouses  a  free  woman  who  has  land  in  fee,  their  son 
born  in  matrimony  *isa  villain,  and  his  lord  shall  acquire 
the  land  of  the  mother  either  by  his  own  entry  or  by 
means  of  his  villain,  heir  to  his  mother,  by  assise  of 
Mortdancester,  if  she  does  not  assign  it  over  in  her 
lifetime,  and  the  son  survives  her,  and  she  has  no  other 
issue  which  is  free.  "Wherefore  when  any  bondman 
or  bondwoman  once  becomes  free,  or  is  enfranchised  by 
the  free  bed  of  his  lord  or  of  any  other,  we  ordain  in 
favour  of  freedom  and  of  matrimony  that  they  and  their 
issue  shall  for  ever  be  held  free,  and  the  husbands  be 
entitled  to  hold  by  the  courtesy  of  England,  and  the 
wives  to  dower. 

7.  We  will  that  villains  in  all  actions  be  answerable 
to  every  one,  and  every  one  to  them,  so  that  the  excep- 

*  That  is  they  were  not  the  villains  of  tliat  lord. 


I,  *79  5.]  OF  VILLENAGE.  165 

tionofvillenage  shall  only  hold  good  between  the  lord 
and  his  villain,^  and  that  only  when  the  lord  has  been 
in  recent  possession  of  him  and  of  his  suit,  or  at  the 
least  has  been  seised  of  him  as  his  villain  within  a  year 
and  a  day. 

8.  A  bondman  may  be  enfranchised  also  by  the  rec- 
ognizance of  his  lord,  as  if  his  lord  has  acknowledged 
him  to  be  free  in  a  court  of  record.  So  also  if  he  be 
waived  by  the  lord,  as  where  the  lord  has  abandoned 
him.  Likewise,  by  writing  of  his  lord,  as  if  his  lord 
has  for  himself  and  his  heirs  quitclaimed  to  the  bond- 
man and  his  heirs  all  manner  of  right  which  he  had  or 
might  have  in  the  person  of  the  naif  by  reason  of  the 
bondage  of  his  blood.  ^Villains  may  also  recover  their 
freedom  by  the  negligence  of  their  lords,  as  if  any  lord 
suffer  his  villain  to  be  fugitive  for  time  of  prescrip- 
tion limited  in  our  writ  of  Mortdancester  ;  or  to  abide 
Avithin  our  demesnes  without  challenge  for  a  year  and 
a  day, — a  privilege  which  was  heretofore  granted 
to  us  by  common  allowance  for  our  profit  and  for 
the  improvement  of  our  towns.  Likewise,  if  he  per- 
mit his  naif  2  to  be  ordained  clerk,  or  created  a  knight 

1  The  principle  here  stated  was  of  gradual  introduction.  Ac- 
cording to  Glanvill  a  stranger  might  in  some  cases  except  to  the 
competency  of  a  naif  to  take  part  in  certain  legal  proceedings 
even  after  his  enfranchisement.  For  the  loi'd  could  make  him 
free  as  against  himself,  but  not  as  against  third  parties.     (Glan. 

II.  5.  c.  5.)    Compare  before  c.  29.  s.  6,  p.  159,  and  the  note  there. 

2  '  The  lord  who  permits  his  villain  to  be  on  the  level  of  a  free- 
man (a  foer  de  franc  horame)  loses  tiie  right  to  his  service  ;   or  if 


166  BRITTON.  [I,  *80. 

at  least  until  they  be  degraded  from  their  orders  ;  and 
so  in  the  case  of  his  naif,  if  he  suffer  her  to  be  married 
to  a  freeman,  she  and  all  her  issue  shall  for  ever  after 
be  of  free  estate,  as  before  is  said. 

9.  Where  any  naif  flies  from  his  lord,  his  lord  may  pur- 
sue him  as  his  chattel,  to  apprehend  and  bring  him  back 
into  his  fee  wheresoever  he  shall  find  him  within  the 
year  and  day.  But  after  that  time  they  shall  be  deemed 
free  as  much  as  they  please,  until  the  lords  can  recover 
them  by  judgment  of  our  court.  It  is  not  however 
necessary  for  every  lord  to  keep  his  villain  as  a  prisoner  ; 
but  it  is  sufficient  if  the  lords  are  in  possession  of  their 
services,  so  as  to  take  of  some  the  services  due  from 
their  tenements,  and  from  others,  who  hold  nothing 
in  villenage,  a  penny  a  year  for  chevage,  and  one  day's 
work  in  harvest,  or  other  service,  small  *or  great,  ac- 
cording to  their  ability.  So  that  the  lord's  right  of 
action  to  recover  his  fugitive  naif  commences  when 
the  naif  ceases  to  preform  such  services  and  to  ac- 
knowledge him  for  his  lord. 

10.  If  the  lord  cannot  find  the  fugitive  in  his  fee, 
nor  bring  him  to  justice  within  the  year  and  day,  we 
will  command  the  sheriff  of  the  place  in  whose  bailiwick 
the  villain  shall  be  residing,  that  he  '  justly  and  with- 
out delay  cause  such  a  one  the  plaintiff  to  have  such 
a  one  his  naif  and  fugitive  with  all  his  chattels  and  all 

he  suffers  him  to  be  his  attorney,  or  juror  on  an  assise  (ou  assisr) 
or  clerk,  or  knight,  or  burgess,  and  in  other  cases  where  the 
sufferance  of  the  lord  shows  his  intention  that  the  villain  sliould 
have  any  reverence  out  of  servitude.'     (Note  in  MS.  N.) 


I,  *80  k]  OF  VILLENAGE.  167 

his  suit.'  In  this  plaint  no  summons  lies,  but  the  first 
process  is  distress,  and  the  first  distress  is  retained  and 
others  taken,  if  the  plea  be  in  the  county  court,  until 
the  defendant  appears  or  is  attached  by  pledges. 

11.  And  because  the  fugitive  may  allege  freedom,  a 
matter  which  the  sheriff  has  not  jurisdiction  to  try, 
we  have,  in  favour  of  freedom,  granted  to  such  fugitives 
that  whenever  they  find  themselves  aggrieved  by  such 
proceedings  of  their  lords,  they  shall  have  peace  from 
such  grievances  until  the  eyre  of  our  justices  in  that 
county,  and  that  they  shall  have  our  writs  for  that 
purpose,  whenever  they  wish  to  obtain  them,  upon 
finding  pledges  to  the  sheriffs  to  prove  their  freedom 
in  the  eyre  aforesaid  ;  and  that  in  the  meantime  they 
«hall  have  peace. 

12.  This  writ  of  peace  is  called  the  writ  De  lihertate, 
a.nd  in  favour  of  freedom  the  pleadings  are  sooner  dis- 
patched than  in  a  writ  *De  nativo,  unless  the  person 
who  purchased  the  writ  fail  to  appear,  upon  which  he 
and  his  pledges  shall  be  in  mercy  for  his  nonsuit.  If, 
on  the  other  hand,  he  prosecutes  his  suit,  and  the  lord 
makes  default,  and  the  summons  be  in  evidence,  let 
it  be  awarded  that  he  be  free,  and  the  lord  in  mercy, 
because  he  has  wrongfully  aggrieved  him,  and  let 
the  sheriff  be  commanded  not  to  permit  the  lord  to 
aggrieve  him  for  the  future.  If  the  lord  appears,  it 
then  lies  on  the  bondman  to  prove  his  freedom,  which 
he  may  do  in  divers  ways,  as  appears  by  the  several 
points,  which  have  been  stated  in  this  chapter. 

13.  In  a  plea  of  naifty  (as  also  in  pleas  of  Replegiari 


168  BRITTON.  [I,  *81. 

facias,  Yenire  facias,  and  the  like)  no  essoin  is  to  be 
allowed  to  the  defendant  until  after  appearance.  And 
if  the  lord  offers  himself,  and  the  fugitive  makes  de- 
fault, let  it  be  awarded  on  account  of  his  default,  that 
the  fugitive  and  his  pledges  be  in  mercy,  and  that  the 
plaintiff  by  the  default  of  the  fugitive  do  make  proof 
of  his  naifty  against  the  fugitive,  so  that  the  fugitive 
be  never  afterwards  admitted  in  our  court  to  prove  his 
freedom,  and  that  he  be  distrained  by  the  grand  dis- 
tress until  he  appear, 

14.  If  any  lord  has  obtained  a  writ  to  remove  the 
plaints  by  Pone  to  a  higher  court,  before  any  plaint 
upon  the  original  writ  is  commenced  in  the  county  court 
the  Pone  shall  thereby  be  abatable,  on  account  of  the 
false  suggestion  therein  contained,  which  supposes  a 
plaint  to  be  in  the  *county  court,  where  in  fact  no  sum- 
mons was  ever  made.  For  before  summons  or  attach- 
ment or  appearance,  a  plaint  is  never  in  court.  And 
this  may  be  verified  by  the  date  of  the  Pone  and  the 
day  of  the  summons. 

15.  And  when  he  is  in  court,  let  the  plaintiff  count 
against  him  by  himself  or  his  serjeant  in  this  manner: 
*  John  who  is  here  declareth  this  to  3'ou,  that  Peter 
who  is  there  wrongfully  fled  from  him,  and  herein 
wrongfully,  that  he  is  his  villain  who  fled  from  his  land 
within  the  term,  &c.,  and  of  whom  he  was  seised  as  of 
his  villain  until  such  a  year  when  he  fled  from  him.' 
Forasmuch  as  the  effect  of  this  writ  is  to  determine 
the  possession  as  of  a  chattel,  it  is  not  proper  to  count 
in  this  plea  by  descent  nor  by  resort,  nor  to  touch  at 


I,  *81  h.-\  OF  VILLEXAGE.  169 

all  upon  the  right\  no  mention  being  made  thereof  in 
the  writ.  For  then  there  would  be  a  variance  between 
the  writ  and  the  declaration,  and  so  the  writ  would  be 
abatable.  And  besides,  if  one  could  so  count,  the  de- 
fendant might  then  defend  the  right  by  battle,  or  by 
the  great  assise,  which  would  be  a  great  inconvenience 
to  the  lord.  And  because  proof  of  naifty  is  made  by 
suit,  he  must  add  thus,  '  and  if  he  denies  this,  he  denies 
it  wrongfully,  for  the  plaintiff  hath  thereof  suit  good 
and  sufficient.' 

16.  And  immediately  let  the  suit  be  examined,  not 
only  by  taking  their  acknowledgments  whether  they 
are  villains  to  the  plaintiff,  but  whether  he  against 
whom  the  plaint  is  prosecuted  was  ever  upon  the  land 
of  the  plaintiff,  and  in  what  manner  the  plaintiff  was 
seised  of  him.  *And  if  the  suit  be  found  to  disagree, 
in  so  much  is  it  bad  and  defective,  and  the  plaint  shall 
be  lost. 

17.  But  if  the  suit  agrees,  then  let  the  defendant 
answer  thus  :  '  Peter  who  is  here  defends  the  wrons: 
and  force,  and  the  flight  from  the  land  of  John  and  the 
naifty,  and  will  defend  the  same  where  and  when  he 
ought.' 

18.  Afterwards  he  shall  aid  himself  by  exceptions  to 
the  judge,  and  then  to  the  person  of  the  plaintiff,  and 
afterwards  to  his  own  person  ;  and  next  by  exception 
to  the  writ  if  there  is  any  defect  or  error  ;  and  after- 
wards to  the  declaration,  if  there  is  any  defect,  omission, 
or  variance  in  it ;  and  lastly  to  the  action. 

^  The  property,  as  distiaguished  from  the  possession. 


170  BRITTON.  [I,  *82. 

19.  Thus  he  may  sa}'-  that  '  he  is  a  freeman,  and 
Robert  his  father  was  free,  and  those  of  the  suit  were 
free,  until  they  acknowledged  themselves  villains ;  for 
in  the  reign  of  king  Kichard,'  or  of  some  other  king, 
'  it  came  to  pass  that  a  certain  knight  begot  one  Theo- 
bald, great-grandfather  of  this  same  Peter,  which 
Theobald  married  the  nief  of  the  ancestor  of  the  same 
John,  Avho  held  land  of  him  in  villenage,  which  Theo- 
bald as  long  as  he  lived  performed  the  villain  services 
to  the  tenement  appertaining,  and  died  in  the  same 
villenage  ;  that  from  Theobald  came  Philip,  from  Philip 
William,  from  William  Simon,  from  Simon  Robert, 
from  Robert  Peter  who  is  here,  all  of  whom  performed 
the  services  aforesaid  by  reason  of  the  *villain  tenement, 
and  not  by  reason  of  their  persons,  until  the  time  of 
Robert,  father  of  this  same  Peter.  And  if  he  can  prove 
this  by  inquest,  it  shall  be  adjudged  against  the  plain- 
tiff. 

20.  The  defendant  may  also  aid  himself  by  excep- 
tions against  the  suit,  for  he  may  sa}'  that  as  to  one  of 
his  kindred  he  is  not  admissible  in  evidence.  For  if 
there  were  three  of  his  male  kindred,  and  five  females, 
or  more  or  less,  and  he  can  aver  of  one  of  the  kinsmen 
that  he  was  begotten  out  of  matrimon}"^  of  a  free 
woman,  and  that  the  second  kinsman  who  offers  him- 
self for  suit  was  begotten  in  marriage  by  a  freeman 
although  his  mother  was  a  nief,  notwithstanding  he 
has  no  exception  to  make  against  the  third  kinsman  of 
the  suit,  we  will  that  if  he  demands  judgment  whether 
he  ought  to  answer  to  the  suit  of  a  single  maji.  it  shall 


I,  *82  k]  OF  VILLENAGE.  171 

in  such  case  be  adjudged  against  the  plaintiff  ;  because 
the  blood  of  a  man  cannot  nor  ought  to  be  tried  by 
means  of  women,  neither  is  one  male  alone  without 
more  to  be  admitted  as  sufficient  suit. 

21.  Or  he  may  plead  that  he  has  done  homage  to  his 
lord  for  a  tenement ;  or  that  his  lord  has  released  him 
from  all  actions ;  or  that  he  married  his  lady  ;  or  (if 
the  defendant  is  a  woman)  that  she  was  married  to  her 
lord  or  to  another  freeman.  Or  he  may  be  aided  by 
other  peremptory  exceptions,  as  above  is  mentioned. 

22.  If  an}'^  one  pleads  that  he  is  a  clerk  or  knight,  in 
such  case  judgment  shall  be  given  against  the  plaintiff, 
*who  must  impute  it  to  his  own  negligence.  And  if  the 
clerk  or  the  knight  had  not  leave  from  the  lord  to 
take  upon  him  such  order,  or  those  who  ordained  them 
to  confer  the  same  upon  them,  then  the  lord  shall  have 
his  action  to  recover  against  those  who  ordained  them 
to  be  knights  or  clerks  such  damages  as  he  can  reason- 
ably assign.  And  if  such  knights  or  clerks  refuse  to 
perform  honourable  services  becoming  their  station 
more  readily  and  cheerfully  to  such  natural  lords  than 
to  others,  or  behave  in  any  other  manner  unnaturally 
to  them,  in  such  cases  we  will  that  they  be  degraded  ; 
and  if  this  cannot  be  done,  that  satisfaction  be  made  to 
their  lords  out  of  their  chattels  ;  and  if  their  chattels  are 
not  sufficient,  let  those  who  ordained  them  be  answer- 
able. 

23.  Or  the  defendant  may  say  that  the  plaintiff  is 
not  entitled  to  an  answer,  inasmuch  as  this  is  an  action 
limited  within  a  certain  term  (as  other  actions  are), 


172  BRITTON.  [I,  *83. 

and  inasmuch  as  neither  he  nor  any  of  his  ancestors 
were  ever  within  the  term  seised  of  him  or  any  of  his 
ancestors,  as  their  villains,  he  may  demand  judgment 
whether  he  is  at  this  time  bound  to  answer  to  him. 
And  if  this  be  proved,  the  plaintiff  shall  be  convicted 
of  false  plaint.  But  to  this,  as  in  all  other  actions,  he 
may  reply  that  such  plea  ought  not  to  avail  the  de- 
fendant,  for  that  by  continual  claims  he  has  been 
*theretofore  demanded  and  his  ancestors  likewise,  by 
him  and  his  ancestors  by  other  like  writs,  but  by  the 
death  of  his  ancestors  or  by  the  king's  death  those 
writs  abated. 

24.  Or  the  defendant  may  plead  that  he  has  resided 
upon  our  demesne  lands  or  elsewhere  in  any  of  our 
towns  or  cities  for  a  year  and  a  day  without  having 
been  claimed  by  the  plaintiff,  and  if  he  demands  judg- 
ment whether  in  such  case  he  ought  to  answer,  and 
can  verify  this  exception,  the  lord  shall  be  forejudged 
of  his  action  for  his  negligence.  So  also,  where  the 
defendant  can  prove  by  record  of  our  court  that  the 
lord  has  knowingly  suffered  him  to  be  upon  juries  and 
inquests  in  our  court  as  a  freeman.  So,  if  he  can 
verify  by  record  that  he  has  recovered  frank  tene- 
ment against  him  by  judgment  of  our  court,  wherein 
the  plaintiff  did  not  allege  any  exception  of  villenage 
against  him. 

25.  Or  he  may  say  that  the  plaintiff  ought  not  to  be 
answered  until  he  has  fully  restored  to  him  whatever 
goods  of  his  he  detains  from  him,  or  hath  detained 
since   he   claimed    free   estate ;  which   plea  shall   be 


I,  *83  b.]  OF  VILLENAGE.  173 

allowable  by  reason  of  the  words  contained  in  our 
writ,  which  says,  '  with  all  his  chattels  and  all  his 
suit,'  so  that  the  plaintiff  in  his  own  writ  supposes 
himself  not  to  be  seised  of  any  of  the  chattels. 

26.  If  judgment  is  given  for  the  plaintiff,  let  it  be 
awarded  that  the  plaintiff  recover  him  as  his  villain 
with  all  his  suit  and  *all  his  chattels  and  all  his  ac- 
quisitions, and  that  the  villain  have  no  heir  other  than 
the  lord,  and  the  villain  shall  remain  in  our  mercy. 

Here  ends  the  hook  of  personal  j)leas,  and  begins 
that  of  real  jpleas. 


BOOK  II. 

OF   DISSEISINS    AND    THEIR    REMEDIES. 

CHAPTER  I. 

Of  Suits  concerning  Land^  pleadable  hy  Attachment. 

Having  gone  through  the  form  and  manner  of  plead- 
ing personal  pleas  pleadable  by  attachments  of  the 
body  or  by  distresses  of  movable  goods,  we  must  now 
treat  of  pleas  concerning  land,  in  which  the  process  is 
by  attachment  of  the  very  thing  demanded.  And  first, 
of  those  pleas  which  more  nearly  concern  the  breach 
of  our  peace  by  fresh  force,  as  when  a  person  is  wrong- 
fully ejected  or  disturbed  in  the  peaceable  possession 
of  his  freehold,  which  act  of  violence  is  called  disseisin, 
and  fresh  force.  And  in  favour  of  complainants  it  is 
ordained  that  disseisins  may  be  pleaded  by  petty 
assises  in  the  counties  where  the  lands  lie,  in  the  ab- 
sence as  well  as  in  the  presence  of  the  offenders. 

2.  There  can  be  no  disseisin  except  of  a  freehold.^ 
A  freehold  is  a  possession  of  soil  or  of  services  is 
suing  out  of  the  soil  by  a  freeman  holding  in  fee  to 

1  '  Note  that  there  is  a  difference  between  seisin  and  posses- 
sion, for  one  supposes  a  term  of  life,  and  the  other  a  term  of 

years.     Note  in  MS.  N. 
174 


1,  *84  J.]  OF  PURCHASE.  175 

him  and  Lis  heirs,  or  at  the  least  for  term  of  life, 
whether  the  soil  be  charged  with  free  or  other  serv- 
ices. Fee  is  a  right  vested  in  the  person  of  the  true 
heir,  or  any  other  who  hath  acquired  it  by  lawful  title, 
whoever  may  be  seised  of  the  freehold.  And  this  is 
the  property,  whereof  one  may  have  more  and  another 
less,  as  the  heir  of  the  disseisor  has  one  kind  of  fee 
and  of  propert}'^,  but  the  disseisee  has  a  greater.  But 
inasmuch  as  no  one  can  be  disseised  unless  he  be  first 
seised,  we  will  therefore,  before  we  proceed  to  pleas, 
show  in  what  manner  seisin  may  be  acquired. 


CHAPTER  II. 

Of  Purchase. 

1.  Some  things  are  corporeal,  as  those  which  one 
may  touch ;  others  incorporeal,  as  properties,  rights, 
fees,  and  easements  of  tenements.  Some  things  are 
common,  as  the  sea,  the  air,  and  the  sea  shore,  and  as 
the  right  of  fishing  in  tidal  waters  and  in  the  sea,  and 
in  common  waters  and  rivers  ;  and  some  things  are  com- 
mon in  a  less  degree,  as  being  common  to  certain  com- 
munities, as  the  walls  and  gates  of  cities  and  boroughs ; 
other  sare  common  in  a  more  special  manner,  as  lands, 
rents,  and  other  possessions  and  rights  granted  for  the 
common  advantage  of  a  community,  for  which  no 
single  plaint  can  be  made  by  a  stranger  who  is  not 
of  the  community,  *nor  can  any  single  person  bring 
such  tenements  in  judgment,  in   the  absence  of  the 


176  BRITTON.  [I,  *85. 

community,  or  plead  or  be  impleaded  by  any  stranger ; 
for  a  member  cannot  answer  for  the  whole  body,  ex- 
cept as  an  attorney. 

2.  There  are  some  things  which  are  no  one's  prop- 
erty, as  things  sacred  and  dedicated  to  God  by  prel- 
ates of  holy  church,  such  as  are  churchyards,  burial- 
places,  churches,  chapels,  and  other  consecrated  places, 
whether  they  are  built  upon  or  not.  For  things  divine 
ought  not  to  be  appropriated  to  human  purposes.  And 
if  they  have  been  built  upon,  although  the  structure 
fall  down,  the  place  still  remains  sacred.  There  are 
also  some  things  which  are  not  the  goods  of  any  person, 
and  which  are  consecrated  in  the  name  of  God  in  holy 
church,  such  as  chalices,  censers,  crosses,  vestments  and 
other  like  things,  which  are  forbidden  to  be  sold,  given 
away,  or  alienated,  except  for  ransoming  Christian 
slaves   from  the  hands  of  pagans. 

3.  There  are  also  some  things  which  in  their  natural 
state  are  no  one's  property,  and  whereof  none  can  make 
a  gift,  as  birds,  stags,  does,  and  other  wild  beasts,  and 
fishes.  So  likewise  land  or  other  hereditament  whereof 
no  person  is  in  seisin.  So  likewise  freemen ;  and 
villains  deserted  and  ejected  by  their  lords,  who  imme- 
diately become  free ;  *and  all  other  things  abandoned 
and  remaining  out  of  the  possession  of  any  one,  but 
in  which  things  a  property  may  be  acquired  by  oc- 
cupancy. 

4.  Acquisition  or  purchase  may  be  in  divers  ways  ; 
for  wild  creatures  taken  elsewhere  than  in  a  forbidden 
place  or  a  warren,  belong  to  the  taker  so  long  as  he 


I,  *85  h.-j  OF  PUKCHASE.  177 

keeps  them.  But  if  the  creature  escapes,  and  resumes 
its  wildness  and  its  natural  state,  so  that  there  is  no 
likelihood  of  its  return,  it  will  afterwards  belong,  not 
to  him  who  can  wound  it,  but  only  to  him  who  can 
take  it.^  One  may  also  acquire  a  property  by  inclos- 
ing of  fish  and  other  wild  creatures,  as  bees.  For 
though  bees  settle  upon  a  tree,  yet  the  bees  do  not  be- 
long to  the  owner  of  the  tree,  until  he  has  inclosed 
them  in  his  hive;  no  more  than  birds  which  have  built 
their  nest  on  a  tree,  for  if  another  takes  them,  they  are 
his.  But  if  the  owner  of  the  tree  takes  another  per- 
son's bees  in  his  tree,  and  knows  whose  they  are,  he 
will  be  bound  to  restore  them,  or  to  keep  them  upon 
terras  of  divided  enjoyment  for  half  the  profit  which 
they  shall  produce.  No  person  can  detain  from  another 
birds  or  beasts /<?r<B  naturce^  which  have  been  domesti- 
cated, without  being  guilty  of  robbery  or  of  open 
trespass  against  our  peace,  if  due  pursuit  be  made 
thereof  within  the  year  and  day,  to  prevent  their  being- 
claimed  as  estravs. 

*5.  Property  may  also  be  acquired  by  virtue  of  fran- 
chises granted  by  us  concerning  things  found,  which 
do  not  belong  to  anybody,  as  wreck  of  sea,  beasts  es- 
tray,  rabbits,  hares,  fish,  pheasants,  partridges,  and 
other  wild  creatures;  that  is  to  say,  by  a  franchise  to 

1  This  passage  appears  obscure.  The  sense  is  borrowed  from 
Bracton,  who  observes  tliat  tlie  mere  pursuit  of  a  wild  animal, 
even  though  the  pursuer  succeeds  in  so  wounding  it  as  to  make 
it  possible  to  take  it,  will  not  make  it  his  property,  but  it  will 
belong  to  the  first  person  who  secures  it.     Brae.  8  h. 


ITS  BKITTON.  [I,  *S6. 

have  wreck  of  sea  found  on  his  soil,  waifs  and  estrays 
found  in  his  fee,  and  warrens  in  his  demesne  lands. 
Property  may  likewise  be  acquired  by  the  increase  and 
produce  of  beasts  and  other  animals  belonging  to 
people  ;  and  also  by  the  finding  of  gems  and  precious 
stones  on  the  sea  beach  or  elsewhere  in  places  common 
to  all ;  so  by  fishing  and  by  other  labour  as  well  at  sea 
as  on  land.  And  if  any  island  is  found  in  the  sea 
which  is  not  any  one's  property,  whatever  is  found 
therein  shall  belong  to  the  finder  as  long  as  he  shall 
keep  it  in  his  hands  or  in  his  possession. 

6.  A  purchase  or  acquisition  may  also  accrue  from 
the  fraud  and  folly  of  another,  as  where  persons  by 
malice  or  ignorance  build  with  their  own  timber  on 
another's  soil,  or  where  they  plant  or  engraft  trees  or 
sow  their  grain  in  another's  land,  without  the  leave  of 
the  owner  of  the  soil.  In  such  cases  what  is  built, 
planted,  and  sown  shall  belong  to  the  owner  of  the  soil, 
upon  the  presumption  of  a  gift ;  for  there  is  a  great 
presumption  that  such  builders,  planters,  or  sowers  in- 
tend that  *what  is  so  built,  planted,  or  sown  should 
belong  to  the  owners  of  the  soil,  especially  if  such  struc- 
tures are  fixed  with  nails,  or  the  plants  or  seeds  have 
taken  root.  But  if  any  one  becomes  aware  of  his 
folly,  and  speedily  removes  his  timber  or  his  trees,  be- 
fore our  prohibition  comes  against  his  removing  them, 
and  before  the  timber  is  fastened  with  nails,  or  the 
trees  have  taken  root,  he  may  lawfully  do  so. 

7.  With  regard  to  immovable  things  of  common 
right,  found  in  the  possession  of  no  one,  a  property 


I,  *86  b.]  OF  MEASITKES.  179 

may  be  purchased  in  many  ways.  One  way  is  by  a 
subtraction  of  water  whereby  any  one's  soil  is  increased 
by  little  and  little,  provided  the  lands  are  not  bounded 
between  neighbours.  But  it  would  be  otherwise  in 
case  of  a  sudden  increase;  for  if  one  neighbour  by 
the  violence  of  a  flood  is  deprived  of  part  of  his  soil, 
whereby  the  soil  of  his  neighbour  on  the  other  side  of 
the  water  is  increased,  by  such  a  sudden  increase  noth- 
ing shall  be  lost,  unless  the  river  be  an  arm  of  the  sea  ; 
but  the  soil  may  be  recovered  by  this  assise,  if  the  true 
possessor  be  deforced,  unless  he  be  barred  by  negligence. 
But  if  the  increase  has  been  so  gradual,  that  no  one 
could  discover  or  see  it,  and  has  been  added  by  length 
of  time,  as  in  a  course  of  many  years,  and  not  in  one 
day  or  in  one  year,  and  the  channel  and  course  of  the 
water  is  itself  moving  towards  the  loser,  in  that  case 
such  addition  remains  the  purchase  *and  the  fee  and 
freehold  of  the  purchaser,  if  certain  bounds  are  not 
found.  And  bj^  increase  of  the  demesne  the  seignioi-ies 
and  fees  of  the  lords  increase,  and  the  lords  may  dis- 
train as  well  in  such  additions  as  elsewhere  in  their 
fees  without  doing  a  wrong. 

8.  If  a  new  island  is  formed  in  the  water,  the  island 
shall  belong  to  him  whose  soil  is  nearest  adjoining  to 
it,  in  whole  or  in  part  according  as  it  rises  in  the 
middle  or  towards  one  bank  of  the  water.  If  an  island 
grows  up  in  the  sea,  it  shall  belong  to  the  person  who 
shall  be  found  in  possession  of  it.  It  is  otherwise 
however  of  an  island  made  by  the  sea  in  any  one's  sol, 
for 'the  island  shall  belontj  to  the  owner  of  the  fee  and 


180  BRITTOK.  [I,  *8r. 

of  the  soil ;  and  if  he  be  deforced,  he  shall  be  aided  by 
this  assise. 

9.  There  is  also  a  good  title,  called  succession,  as 
that  of  the  right  heir  to  his  inheritance,  and  of  suc- 
cessor to  the  rights  of  his  church,  whereof  his  prede- 
cessor died  seised.  How  an  inheritance  descends,  and 
to  whom,  shall  be  explained  in  the  book  concerning 
Right  in  the  chapter  concerning  Successions.  There  is 
also  a  kind  of  title  which  has  some  resemblance  to  suc- 
cession, namely,  title  by  accruer.  This  is  where  by 
the  death  of  one  parcener  without  heir  his  share  accrues 
to  the  other  parceners. 

10.  Things  which  are  not  in  the  seisin  of  another 
may  be  purchased  b}'^  title  of  gift,  and  of  feoffment, 
and  also  by  succession,  escheat,  reversion,  *assignment 
of  dower,  hiring,  borrowing,  and  by  title  of  testament. 
A  freehold  may  also  be  acquired  by  being  the  father 
of  issue  born  alive,  by  a  special  privilege  which  has 
the  force  of  law  in  England  and  Ireland,  and  in  many 
other  ways.  And  with  regard  to  the  purchase  of  cor- 
poreal things,  no  gift  is  sufficient  without  delivery  of 
seisin. 


I,  *87  b.]  OF  GIFTS.  181 


CHAPTEE  III. 

Of  Gifts. 

1.  A  gift  is  an  act  whereby  anything  is  voluntarily 
transferred  from  the  true  possessor  to  another  person, 
with  the  full  intention  that  the  thing  shall  not  return 
to  the  donor,  and  with  full  intention  on  the  part  of 
the  receiver  to  retain  the  thing  entirely  as  his  own 
without  restoring  it  to  the  giver.  For  a  gift  cannot  be 
properly  made,  if  the  thing  given  does  not  so  belong 
to  the  receiver,  that  the  two  rights,  of  property  and 
of  possession,  are  united  in  his  person,  so  that  the  gift 
cannot  be  revoked  by  the  donor,  or  made  void  by 
another,  in  whom  the  lawful  property  is  vested ;  as 
may  be  done  in  the  case  of  donations  and  feoffments 
by  disseisors,  and  other  like  gifts  in  prejudice  of  the 
right  of  another.  Gift  is  a  more  general  term  than 
feoffment ;  for  gift  is  applicable  to  all  things  movable 
and  *immovable,  and  feoffment  is  only  of  soil,  whereof 
a  person,  being  wrongfully  ejected,  may  recover  seisin 
by  this  assise. 

2.  It  should  be  known,  that  some  persons  have  power 
to  give,  and  others  not.  For  no  one  can  effectuall}'^ 
give  but  he  in  whose  person  the  possession  and  the 
property  are  vested,  and  sometimes  those  who  have 
nothing  but  the  fee  and  the  property,  as  by  assignments 


182  BKITTOK  [I,  *88. 

and  recognizances  in  our  court ;  all  other  manner  of 
gifts  are  revocable. 

3.  Kings  also  may  not  so  alien  the  rights  of  their 
crown  or  of  their  royalty  as  not  to  be  revocable  by 
their  successors.  It  is  nevertheless  allowable  for  kings 
to  grant  baronies  and  other  demesnes,  and  franchises, 
sometimes  in  alms,  at  other  times  to  have  the  prelates 
and  other  sage  persons  of  the  realm  of  their  council,  so 
as  they  be  summonable  by  the  king  and  amenable  to 
his  justice  ;  and  in  other  cases  in  fee  farm,  as  cities, 
boroughs,  and  other  demesnes  ;  and  in  other  cases  to 
retain  the  love  of  their  people ;  and  in  other  cases  for 
dispatch  of  justice,  for  which  several  franchises  are 
granted,  as  that  of  infangthef,  and  the  power  of  hold- 
ing plea  in  a  writ  of  right,  and  other  franchises, 

4.  Neither  can  prelates  of  holy  church  so  alien  the 
rights  of  their  churches,  nor  templars,  hospitallers,  or 
other  persons  in  religion,  as  that  their  gifts  shall  not 
be  revocable  by  the  donors.  *Neither  can  earls,  barons, 
knights,  or  Serjeants,  who  hold  in  chief  of  us,  so  dis- 
member our  fees  without  our  leave  as  that  we  ma}"^  not 
lawfully  eject  the  purchasers ;  nor  in  such  case  will  it 
avail  to  allege  length  of  seisin,  inasmuch  as  no  time  is 
limited  for  the  recovery  of  our  rights. 

5.  Felons  cannot  after  the  commission  of  their  felony 
make  any  alienation,  which  may  not  be  revoked  by  the 
lords  of  the  foe  by  our  writs  of  Entry  and  Escheat. 
And  bastards  enfeoffed  to  themselves  and  their  heirs 
(where  assigns  are  not  specified  in  the  feoffment)  can- 
not alien  so  as  to  prevent  the  lords  of  the  fees  from. 


I,  *88  b.]  OF  GIFTS.  183 

having  the  lands  aliened  as  their  escheat.  Nor  may 
infants  within  age,  nor  natural  fools,  nor  madmen,  nor 
deaf  persons,  nor  dumb,  nor  lepers  removed  from  the 
society  of  people,  nor  villains,  make  any  alienation,  nor 
sokemen  of  their  socage. 

6.  Neither  can  married  women  alien  without  their 
husbands  ;  nor  can  husbands  without  their  wives  make 
such  a  gift  of  any  part  of  the  inheritance  of  their  wives 
as  shall  not  be  revocable  by  the  wives  if  they  survive 
their  husbands ;  nor  yet  wives  with  their  husbands  in 
prejudice  of  those  in  whose  persons  the  fee  and  prop- 
erty are  vested  by  form  of  the  gift,  *as  in  fees  tail ; 
nor  may  husbands  give  anything  to  their  wives,  nor  the 
reverse,  after  the  contract  of  marriage. 

7.  Those  also  cannot  effectually  give  who  do  so 
through  fear  of  death,  provided  they  will  revoke  their 
deeds  as  soon  as  they  escape  from  prison.  But  un- 
less fear  of  death  can  be  alleged,  any  one  may  give 
as  well  in  prison  as  without.  Likewise  lunatics  and 
frenzied  persons  may  give  an  alien,  but  not  during 
their  madness.  And  persons  in  religion  may  give  be- 
fore they  are  professed,  and  lepers  before  they  are  put 
out  of  the  society  of  healthy  people  ;  fools  also,  so  as 
they  are  not  fools  born. 

8.  But  whether  a  gift  be  lawful  or  wrongful,  if  the 
purchaser  be  challenged  in  his  seisin  it  becomes  the 
duty  of  the  donor  to  warrant  his  gift  as  long  as  he 
lives,  although  he  be  not  bound  thereto  by  any  special 
clause  in  a  deed,  and  although  the  purchaser  do  hom- 
age for  the  same  to  another  than  the  donor,  as  to  the 


184  BRITTON.  [I,  *89. 

chief  lord.  And  if  the  donor  has  bound  his  heirs  to 
warranty,  and  the  purchaser  is  impleaded,  he  shall 
never  be  deprived  of  the  gift  without  the  heirs  making 
it  up  to  him  in  value,  supposing  they  have  wherewith 
to  do  so,  if  they  cannot  defend  him  in  his  seisin,  and 
the  purchaser  proceeds  according  to  law.  *But  if  war- 
ranty is  excepted,  then  he  must  proceed  according  as  it 
was  covenanted  between  them.  Such  purchasers  may 
act  foolishly,  and  defeat  their  own  right  in  this  manner, 
and  in  like  cases.  A.  ejects  B.  of  his  freehold,  and 
gives  it  to  C. ;  B.  proceeds  by  this  assise;  A.,  doubting 
the  result  of  the  assise,  ejects  C,  and  restores  the  land 
to  B.,  who  receives  it  as  his  freehold  restored,  and  not 
by  gift.  If  C.  proceeds  b}'^  this  assise,  he  shall  have 
judgment  to  eject  B.,  and  so  B.  will  lose  the  possession 
through  his  own  foll3\^ 

9.  There  are  other  kinds  of  gifts,  which  are  not  ab- 
solute gifts,  but  are  rather  leases  and  demises  for  a 
term,  or  in  fee,  and  whereout  a  man  looks  for  the  re- 
version or  some  annual  service.  Of  which  gifts  some 
are  conditional,  and  in  such  the  fee  is  cut  down  and  in 
suspense  until  a  certain  thing  happens,  as  shall  be 
afterwards  mentioned  ;  and  some  are  made  for  a  par- 
ticular purpose,  as  on  occasion  of  marriage,  and  for 
several  other  causes.  Some  gifts  are  absolute  and  large, 
others  are  restrained  and  in  special  form,  as  to  some 
certain  heirs  named  in  the  gifts,  or  where  certain  per- 
sons are  excepted  in  the  gifts.     Some  gifts  may  be  ab- 

*  B.  will  be  put  to  his  proprietary  action  or  writ  of  right,  his 
last  possession  having  been  wrongful. 


I,  *89  J.,  *90.]  OF  GIFTS.  185 

solute  at  the  beginning,  and  afterwards  restrained  by 
this  clause,  so  that  the  purchaser  shall  not  have  power 
to  alien  the  gift  to  certain  persons,  or  except  to  certain 
persons,  or  toanj'^  one,  *Some  gifts  are  complete,  where 
both  rights  unite  in  the  purchaser;  others  are  begun, 
but  not  completed ;  and  such  titles  are  bad,  as  in  case 
of  gifts  granted,  whereof  no  livery  of  seisin  follows. 

10.  Some  are  weak  in  their  commencement,  but  are 
afterwards  strengthened  by  the  confirmation  of  those 
who  have  the  property,  as  in  the  case  of  gifts  made  by 
infants  under  age,  and  by  those  who  have  no  property 
in  the  thing,  in  whatever  way  they  may  have  come 
into  possession  of  it.  But  however  such  possessions 
be  acquired,  where  the  purchasers  have  purchased  an 
estate  other  than  their  feoffors  could  legally  convey  to 
them,  if  such  purchasers  be  presently  ejected  by  those 
in  whose  persons  the  property  remains  or  rests,  the 
ejected  shall  never  recover  by  this  assise,  on  account 
of  the  defective  entry.  And  if  such  purchasers  are 
not  presently  ejected,  they  ma}'^  be  afterwards  ejected 
by  judgment  of  our  court  by  virtue  of  this  assise,  and 
of  our  writs  of  Entry,  and  other  w-rits.  In  some  cases, 
however,  the  remedy  for  such  disheritable  alienations 
must  be  delayed  until  after  the  decease  of  the  alienors, 
as  in  case  Avhere  the  alienors  held  for  the  term  of  their 
lives.  And  in  case  of  alienations  made  by  those  who 
had  an  inferior  estate,  this  assise  shall  be  maintained 
against  the  feoffors  and  feoffees  jointly. 

*11.  There  are  some  also  who  cannot  without  our 
leave  purchase  anything  but  movables,  as  persons  in 


1S6  BRITTON.  [I,  *90  h. 

religion.  IS'either  can  a  husband  purchase  more  than 
the  movables  of  his  wife,  nor  the  reverse,  after  marriage 
celebrated  between  them  ;  nevertheliss  whatsoever  is 
the  wife's  is  the  husband's,  and  not  the  reverse.  For 
the  law  forbids  gifts  between  husband  and  wife  for 
two  reasons ;  first,  from  a  presum])tion  of  excessive 
fondness  ;  secondly,  lest  the  donor  should  through  such 
good-nature  remain  poor  and  necessitous.  Neither  can 
an  infant  under  age,  nor  any  other  person  whatsoever, 
purchase  anything  where  the  donor  remains  in  seisin, 
whether  he  retain  the  possession  as  owner  or  as  guar- 
dian. Nor  can  lepers  expelled  society,  nor  madmen, 
nor  idiots,  nor  such  as  are  incapable  of  consenting  to 
a  purchase,  acquire  anything  without  guardians. 

12.  If  any  one  would  make  a  gift  to  an  infant  under 
age,  and  yet  retain  an  estate  for  the  term  of  his  life, 
let  him  first  make  a  complete  gift,  and  put  the  infant 
in  seisin,  and  give  him  some  stranger  as  his  guardian  ; 
and  when  the  infant  has  been  in  ])eaceable  seisin,  let 
him  eject  him,  and  after  the  donor  has  been  a  consid- 
erable time  in  seisin,  let  him  procure  himself  to  be 
ejected  by  the  infant,  so  that  the  donor  may  recover 
Ills  seisin  by  this  assise  and  by  conviction,  claiming  a 
freehold  by  title  of  term  of  life.  But  for  this  proceed- 
ing the  assent  of  the  infant  and  guardian  will  be 
necessar}'. 

*13.  There  are  some  purchases  which  are  invalid, 
unless  induction  into  seisin  follows,  as  of  corporeal 
things;  others  which  are  good  without  institution  of 
seisin    made   immediatelv  on   the   gift,   as   of  things 


I,  *90  />.]  OF  GIFTS.  187 

incorporeal,  such  as  franchises,  and  easements  relating 
to  land,  for  which  this  assise  lies  as  well  before  seisin 
as  after,  as  to  have  a  way  in  another's  soil,  or  common 
for  a  certain  annual  rent.  For  the  act  of  the  mind  in 
the  union  of  wills,  and  the  delivery  of  the  writings 
from  one  neighbour  to  another,  are  sufficient  for  seisin, 
as  appears  by  the  franchise  of  infangthef ;  ^  for  it  often 
happens  that  we  grant  to  persons  the  franchise  of  out- 
fangthef,  that  is  to  say,  to  have  the  punishment  of  their 
people  and  tenants,  wheresoever  the}'^  may  be  appre- 
hended out  of  their  fee,  and  adjudged  to  be  hanged,  so 
that  after  such  judgment  given,  they  may  take  them 
and  bring  them  back  into  their  franchise,  and  cause 
them  to  be  hanged  upon  their  own  gallows.^  In  sucii 
a  franchise,  no  one  to  whom  we  have  granted  the 
franchise  in  that  form  ought  to  be  disturbed,  although 
he  has  not  hitherto  been  seised  thereof.     For  it  may 

'  The  above  reading  is  found  in  ail  tlie  MSS.  wliicli  I  liave 
■consulted,  though  the  context  seems  to  I'equire  '  outfangenthef.' 

2  Bracton  defines  outfangthef  to  be  the  riglit  of  trying  thieves 
coming  from  other  parts,  and  taken  within  the  limits  of  the 
lord's  jurisdiction  ;  and  says  expressly  that  this  franchise  does 
not  authorise  the  lord  to  bring  back  into  his  liberty  and  try  one 
who  has  left  his  jurisdiction  and  been  taken  elsewhere.  (Brae;. 
154  6.)  Fleta  follows  Bracton,  but  adds,  that  though  the  lord 
cannot  try  his  own  man  taken  elsewhere,  yet  when  convicted,  he 
has  a  right  to  hang  him  on  his  own  gallows.  (Fie.  63.)  Later 
authors,  following  the  'Termes  de  la  ley,' have  explained  out- 
fangthef to  be  the  right  of  the  lord  to  call  to  judgment  in  his 
court  one  of  his  own  men  apprehended  for  felony  out  of  his  fee. 
See  Ducange,  Gloss.  ;  Tomline's  Law  Diet.  ;  Wliarton's  Law 
Lexicon. 


188  BHITTON.  [L  *9L 

well  happen,  that  such  a  chance  may  not  occur  within 
ten  years.  Whereby  it  plainl}'  appears  that  a  man 
may  be  seised  of  incorporeal  purchases  without  institu- 
tion of  speed\^  seisin. 

*14.  There  are  some  incorporeal  things  which  can- 
not be  well  purchased  without  the  aid  of  our  court  y 
as  fees  and  properties  ;^  of  which  by  agreement  of  the 
purchaser  and  the  donor  a  fine  should  be  levied  in  our 
court,  by  means  whereof  this  kind  of  purchase  derives 
effect  and  stability.^  Nevertheless  there  are  some  fees 
which  are  not  to  be  purchased  by  certain  persons  with- 
out a  mesne.  For  husbands  cannot  purchase  the  fees 
of  their  wives'  dowers,^  by  reason  of  the  service  which 
cannot  be  attorned  from  the  wife  to  the  husband. 
Hence  the  use  in  such  cases  of  quitclaims  from  those  to 
whom  the  reversion  belongs. 

15.  Sometimes  it  happens  that  he  to  whom  the  re- 
version legally  belongs  by  the  form  of  the  gift,  cannot 
give  his  right  to  any  person  he  may  choose  until  he  is 

^  The  word  fee  is  here  used  for  seignory  ;  the  word  property 
for  a  proprietary  right  not  accompanied  by  possession. 

2  *  The  right  which  is  severed  from  the  possession  is  sometimes 
not  vested  in  the  purchaser  without  recognizance  in  the  King's 
Court,  and  then  by  a  judicial  writ,  called  Quid  juris  clamat  ; 
sometimes  it  is  vested  b}'^  quitclaim,  and  sometimes  the  two 
rights  must  be  united,  that  is,  the  possession  and  the  property 
before  the  right  can  be  aliened.'  (Note  in  MS.  N.)  As  to  the 
writ  of  Quid  juris  clamat,  see  Reg.  Brev.  Judic.  36  b. 

*  That  is,  the  immediate  seignory  of  the  tenements  held  by  the 
wife  by  title  of  dower  under  a  former  marriage. 


I,  *91  ^.]         OF  JOINT  PURCHASES.  189 

himself  seised,  as  in  case  of  those  heirs  to  whom  an  in- 
heritance accrues  after  the  decease  of  the  purchasers 
who  were  seised  for  the  term  of  their  lives.  But  the 
tenants  may  deliver  their  seisin  to  the  person  to  whom 
the  reversion  belongs,  and  he  may  reenfeoff  them  or 
others ;  and  then  not  only  the  fee  is  granted,  but  the 
possession  at  the  same  time,  together  with  the  fee  and 
the  freehold. 


CHAPTER  IV. 

Of  joint  purchases} 

1.  As  one  person  may  make  a  separate  purchase,  so 
may  many  purchase  in  common,  to  them  and  their 
heirs  and  assigns,  *or  to  certain  heirs  by  a  limited  feoff- 
ment, and  sometimes  to  issue  born,  and  sometimes  to 
issue  to  be  born,  where  one  can  not  be  heir  to  the  other. 
It  is  thus  Avith  the  gifts  which  persons  make  to  their 
mistresses  or  concubines,^ — to  have  and  to  hold  to  the 

1  It  should  be  observed  that  throughout  this  chapter,  and  else- 
where, the  word  commun  is  used  of  joint  tenancy.  No  reference 
is  made  to  tenancy  in  common,  which  appears  to  have  been  of 
later  growth. 

2  With  respect  to  the  supposed  gift  to  a  concubine  and  her 
children  born  and  to  be  born,  (an  example  which  is  borrowed 
from  Bracton,)  the  annotator  in  MS.  N.  observes  as  follows  : — 'To 
that  it  is  said  that  a  concubine  can  purchase  to  her  and  her  chil- 
dren born  and  to  be  born,  I  do  not  at  all  agree,  (Je  ne  m'y  acord 
poynt.)  For,  suppose  the  concubine  to  have  two  children  at  the 
time  of  the  purchase,  and  the  deed  to  speak  thus  :  Sciant  &c. 


190  BRITTOK  [I,  *91  h. 

concubine  and  her  children  begotten  and  to  be  begotten 
and  their  heirs  ;  none  of  which  children  can  be  heir  to 
the  others.     And  if  the  mother  be  ejected,  although 

quod  ego  dedi  Beatriciae  et  Clementi  et  David  pueris  suis  et 
omnibus  aliis  pueris  de  me  pvocreatis  ex  eadem  Beatricia  nasci- 
turis,  habendum  et  tenendum  praedictis  B.  C.  et  D.  et  eorum 
haeredibus  et  assignatis  ; — if  Beatrice  have  afterwards  children 
who  claim  estate  by  this  feoffment,  and  are  kept  out  by  the 
first  purchasers,  and  bring  assise  ;  being  driven  to  state  their 
title,  they  must  claim  either  by  title  of  purchase  or  of  succession. 
And  by  purchase  they  can  demand  nothing,  because  they  are 
not  named  by  name  in  the  feoffment,  and  were  no  parties  to  the 
livery  of  seisin .  For  in  feoffments  it  behoveth  to  name  certain 
donor,  certain  purchaser,  and  certain  tenement  :  and  those  who 
were  not  in  reruin  natura  at  the  time  of  the  translation  cannot 
claim  part  in  the  thing  transferred,  the  nature  of  the  translation 
being,  that  when  the  thing  transferred  becomes  vested  in  the 
purchasers,  it  is  extinct  in  the  donors,  .md  the  reverse.  But  in 
this  feoffment  everything  is  extinct  in  the  donor,  and  is  vested 
in  those  pui-chasers  who  were  parties  to  the  induction  of  seisin, 
and  in  none  other.  Therefore  it  appears  that  the  word  nascitu- 
ris  is  vain  and  ineffectual.  And  if  the  concubine  be  pregnant, 
and  the  donor  say,  Dedi  Beatriciae  et  Clementi  filio  suo  ;  and  order 
that  the  child  which  shall  be  born  be  called  Clement ;  although 
this  happen  accordingly,  and  tlie  child  remain  ten  or  twelve 
years  with  his  mother,  as  it  were  continuing  his  seisin,  if  he  be 
afterwards  ejected  by  his  mother,  he  shall  not  recover  by  the 
assise,  as  some  say.  For  the  alienation  gave  forthwith  a  new 
tenant  to  the  lord  ;  and  if  the  mother  had  committed  felony  and 
been  attainted,  althougli  execution  had  been  delayed  until  the 
infant's  birth,  yet  the  right  of  the  lord  to  have  the  escheat  would 
have  accrued  immediately  ;  which  right  cannot  be  extinguished 
by  him  who  could  claim  no  estate  at  the  time  of  the  felony  com- 
mitted, for — jus  semper  in  aliquo  sibi  vindicat,  locum,  nee  in 


I,  *92.]  OF  JOINT  PURCHASERS.  191 

the  children  have  not  had  seisin,  yet  the  mother  and 
children  shall  recover  by  this  assise,  by  reason  of  the 
seisin  which  the  mother  had  in  their  name.  And  if 
the  mother  be  dead,  again  the  children  shall  recover 
by  this  assise  by  virtue  of  the  same  seisin,  because  she 
took  the  seisin  for  herself  and  her  children  as  their 
guardian.  For  that  person  is  seised,  for  whom  and  in 
whose  name  the  seisin  is  taken  ;  as  is  the  case  with  the 
purchases  of  villains  to  the  use  of  their  lords. 

2.  T^evertheless  if  one  of  them  allows  himself  to  die 
seised  of  his  part  before  division,  it  accrues  to  his  par- 
ceners, and  to  their  heirs,  and  so  on  to  all  the  rest  until 
the  last.  And  if  the  last  die  without  heirs  and  with- 
out assign,  the  inheritance  shall  escheat  to  the  lord. 
And  if  any  man  purchase  to  himself  and  his  heirs, 
without  assigns  being  named  in  the  gift,  such  pur- 
chaser, if  he  has  no  heirs,  cannot  alien  or  make  an  as- 
sign ;  *but  if  he  has  heirs  either  near  or  remote,  who 

loco  vacuo  requiescere  potest.'  This  latter  opinion  is  upon  a 
point  respecting  which  there  is  little  authority  in  our  common 
law.  By  the  civil  law  children  in  the  womb  were  treated  as 
capable  of  acquiring  property',  (see  Dig.  li.  1.  t.  5.  1.  26);  and 
this  law  was  followed  in  our  courts,  having  cognizance  of  wills 
and  administi-ations.  (See  Beale  v.  Beale,  1  P.  Will,  244.  Doe  v. 
Lancashire,  5  Term.  Rep.  49.)  This  however  was  not  the  case 
at  common  law,  for  it  seems  to  have  been  the  general  opinion 
that  if  a  remainder  was  limited  to  a  child,  who  was  in  ventre  sa 
mere  at  the  determination  of  tlie  particular  estate,  the  remainder 
failed,  the  child  not  being  considered  to  be  in  esse.  The  con- 
trary rule  was  finally  laid  down  by  Statute  10  and  11  Will.  III. 
c.  16.  See  Reeve  v.  Long,  1  Salk.  227  ;  Coke  Lit.  298  a.  (note  by 
Butler);  Coke  Lit.  390  a.  ;  Blackstone,  Comm.  vol.  i.  p.  130. 


192  BEITTON.  [I,  *92  5. 

oan  warrant  tlie  gift,  he  may  in  such  case  give,  sell,  and 
make  assigns :  but  if  there  be  no  heir,  then  the  tene- 
ment will  escheat  to  the  lord  of  the  fee. 

3.  If  purchasers  holding  in  common  be  ejected  out 
of  such  purchase,  they  shall  all  jointly  recover  their 
seisin  to  hold  in  common,  by  this  assise,  Avhether  the 
disseisor  be  a  stranger  or  one  of  the  parceners. 

4.  But  if  any  one  die  seised  of  his  part  in  severalty 
without  an  heir,  and  without  having  created  assigns, 
that  part  shall  not  accrue  to  the  parceners  after  the 
division,  but  shall  escheat  to  the  lord.  And  if  the 
lord  immediately  after  the  decease  of  the  tenant  put 
himself  in  seisin  by  merely  setting  his  foot  thereon,  it 
is  a  sufficient  seisin  ;  and  if  he  be  ejected  or  deforced, 
he  shall  recover  by  this  assise. 

5.  There  are  some  purchases  which  are  valid  as  to 
some  of  the  purchasers,  and  not  as  to  others ;  as,  where 
gifts  are  made  by  a  husband  after  marriage  to  his  wife 
and  their  common  children,  or  to  the  wife  and  the 
wife's  children,  such  gifts  will  not  avail  the  wife,  but 
will  stand  good  as  to  the  children. 

6.  If  two  brothers  purchase  jointly  to  them  and  their 
Iieirs,  the  elder  may  he  tutor  and  guardian  to  the 
younger,  if  the  younger  is  under  age  and  the  elder  of 
full  age;  and  if  both  are  legitimate,  one  shall  be  the 
other's  heir,  *if  he  has  no  heirs  of  his  own  body,  and 
has  not  made  assigns,  whether  partition  was  made  be- 
tween them  or  not.  And  if  one  be  deforced  or  ejected 
after  the  other's  decease,  and  after  having  merely  set 
his  foot  upon  the  land  in  the  name  of  seisin  of  his 


I,  *93.]     OF  CONDITIONAL  PURCHASES.      193 

inheritance,  he  shall  recover  by  this  assise.  And  if  the 
assise  be  brought  against  the  chief  lord,  and  he  plead 
that  he  claims  only  wardship  in  respect  of  the  share 
of  the  deceased  brother,  this  defence  shall  not  prevail, 
although  the  deceased's  brother  have  left  a  son  or  other 
heir  apparent  under  age,  inasmuch  as  no  separate  prop- 
erty was  ever  recognized  in  the  tenement. 


CHAPTER  Y. 
Of  conditional  purchases. 

1.  Notwithstanding  heirs  are  named  in  a  purchase, 
yet  no  purchase  thereby  accrues  to  the  heirs.  And  it 
must  be  understood  that  where  any  one  purchases  to 
himself  and  his  heirs,  he  purchases  to  himself  and  his 
heirs  near  or  remote,  and  to  have  and  to  hold  from 
heir  to  heir,  as  well  to  those  begotten  as  to  those 
which  are  to  be  begotten. 

2.  And  as  heirs  may  by  the  form  of  the  purchase  ac- 
quire a  property  in  the  purchase  of  their  ancestor,  so 
may  they  by  the  form  of  the  contract  between  the 
donors  and  the  purchasers  be  excluded  from  the  pur- 
chase. For  a  covenant  sometimes  bars  succession,  and 
effect  must  be  given  to  the  contract  and  the  will  of  the 
donors,  as  in  the  following  and  like  cases.  *  If  any  one 
purchase  to  himself  and  his  wife  and  their  issue  be- 
gotten in  lawful  matrimony  ;  by  such  a  purchase  the 

13 


194  BRITTOK  [I,  *93. 

purchasers  have  only  a  freehold  for  their  two  lives^ 
and  the  fee  accrues  their  issue  if  there  be  any  already 
born  ;  and  if  not,  then  the  fee  remains  in  the  person 
of  the  donor  until  they  have  issue  ;  ^  and  in  case  the 
purchasers  have  no  issue,  or  have  issue  which  fails,  the 
purchase  will  revert  to  the  donor.  And  if  one  of  the 
purchasers  die,  the  other  shall  retain  the  purchase  for 
the  term  of  his  life.  And  if  they  have  no  issue,  and 
the  tenant  commits  felony,  the  donor  shall  have  the 
reversion,  and  the  chief  lord  shall  have  no  escheat.  And 
if  the  donor  has  set  his  foot  on  the  land  in  name  of 

1  The  treatise  of  Britton  appears  to  have  been  compiled  after 
the  date  of  the  statute  De  douis  conditionalibus,  13  Edw.  I.,  and 
even  of  tlie  statute  Quia  emptores  terrarum,  18  Edw.  I.,  (see  the 
Editor's  Introduction);  but  before  the  effect  of  these  statutes 
upon  the  law  had  become  apparent.  The  observations  of  the  an- 
notator  in  MS.  N.  furtlier  illustrates  this  change  of  law.  '  Before 
the  statute  [Quia  emptores]  the  donor  could  charge  or  discharge 
the  tenements  at  his  will,  and  put  one  or  more  conditions  in  the 
chai-ter.  But  since  the  statute  no  charter  or  gift  was  condi- 
tional save  gift  in  fee  tail,  because  every  tenant  by  force  of  the 
statute  must  hold  of  his  chief  without  mesne.  Wherefore  some 
of  our  companions  (les  uns  de  nos  compaignons)  say  that  this 
chapter  [of  Britton]  is  vain  and  antiquated  (veyn  e  antiquite). 
But  let  them  say  what  they  will  (dient  lur  talent) ;  for  it  is  said 
'  covenant  conquers  law,'  as,  if  any  one  desires  that  any  of  these 
conditions  may  hold,  he  may  give  the  tenement  in  fee  simple, 
and  then  make  indentures  containing  the  conditions  at  his  will ; 
and  thus  by  these  collateral  covenants  (covenans  den  en  coste) 
one  may  recover  the  land  either  by  his  own  force  or  by  force  of 
law  as  by  writ  of  covenant.  So  that,  although  tlie  charter  was 
not  conditional,  the  conditional  writings  defeat  the  charter. *" 
See  some  further  observations  on  sections  4,  5,  and  6. 


I,  *93  5.]     OF  CONDITIONAL  PURCHASES.   195 

seisin,  and  is  ejected  or  deforced,  he  shall  recover  by 
this  assise. 

3.  A  condition  may  be  made  in  many  ways  ;  in  one 
way  to  the  advantage  of  the  purchaser,  as  upon  con- 
dition that  he  does  not  give  or  alien,  and  sometimes  to 
his  prejudice,  as  upon  condition  that  he  do  not  hold  in 
fee,  but  only  for  a  term.  There  are  four  principal 
heads  of  conditions  which  are  allowable  in  gifts  and 
other  contracts,  namely  these :  I  give  to  thee,  so 
that  thou  give  to  me :  I  do,  so  that  thou  do :  I  do,  so 
that  thou  give  :  I  give,  so  that  thou  do.  These  con- 
ditions so  bind  the  parties  by  their  contracts,  *that 
each  is  bound  to  the  other  in  such  a  manner,  that  if  the 
one  gives  or  does  such  a  thing,  the  other  is  bound  and 
obliged  to  do  the  counterpart  according  to  the  contract ; 
so,  in  the  negative,  that  if  the  one  does  not  do  such  a 
thing,  the  other  is  not  bound  to  do  such  a  thing.  And 
if  the  one  does  the  act,  and  the  other  will  not  do  the 
act,  it  is  lawful  for  the  donor  to  take  back  his  gift ; 
and  if  he  is  deforced  thereof,  he  shall  be  aided  by  this 
assise. 

4.  A  purchaser  shall  also  have  the  like  remedy, 
where  certain  lands  are  promised  to  him,  and  writings 
made  thereof,  on  condition  that  he  marry  the  sister  or 
daughter  of  the  donor,  and  the  purchaser  marries  her 
before  the  donor  puts  him  in  seisin  of  the  lands.  If 
the  purchaser,  seeing  that  the  donor  will  not  keep  his 
covenant  with  him,  puts  himself  in  seisin  of  the  land, 
in  pesrson  or  by  another  who  takes  possession  in  his 
name,  and  he  is  ejected  or  deforced,  he  shall  be  aided 


196  BRITTOK  [I,  *94:. 

by  this  assise.^  And  if  the  donor  performs  his  con- 
tract in  part,  and  in  part  not,  in  such  case  the  purchaser 
shall  be  aided  by  our  writ  of  covenant ;  or  of  escheat 
bv  detainer  of  the  services  for  two  years,  as  was  pro- 
vided at  Gloucester.^ 

5.  If  the  donor  says  thus :  I  give  thee  so  much  land 
with  the  appurtenances,  to  have  and  to  hold  to  thee 
and  thy  heirs  if  thou  have  heirs  of  thy  body  begotten  : 
in  such  gifts  the  purchaser  purchaseth  only  a  freehold, 
but  if  he  has  issue,  the  fee  and  the  right  then  first 
accrue  to  him,  *so  that  he  will  be  able  to  give  and  alien 
the  land,  although  the  issue  fail,  because  the  condition 
is  satisfied  ;  ^  and  the  brothers  of  the  purchasers  or 
their  other  remote  heirs  shall  inherit  such  a  purchase. 

1  '  That  whicli  is  said,  that  the  purchaser  may  thrust  liimself 
into  seisin  upon  the  marriage,  is  not  well  said  as  to  the  present 
law  (quant  a  ore).  For,  if  he  can  aid  himself  by  writ  of  cove- 
nant, well  ;  if  not,  let  him  provide  better  another  time.  Note 
in  MS.  N. 

2  The  conclusion  of  this  sentence  is  obscure  ;  and  probably  the 
text  is  corrupt.  The  reference  appears  to  be  to  the  fourth  chapter 
of  the  Statute  of  Gloucester  (6  Ed.  I.),  by  wiiich  a  remedy  was 
provided  to  a  donor  or  lessor  to  recover  the  land  in  case  of  the 
nonpayment  for  two  years  of  a  fee-fai*m  rent  or  other  service  re- 
served amounting  to  a  fourth  part  of  the  value  of  the  land.  The 
writ  by  whicli  this  remedy  was  enforced  was  called  Cessavit 
per  biennium.  (Vet.  Nat.  Brev.  138.)  This  statute  is  cited  in  the 
corresponding  passage  of  Fleta,  as  furnishing  a  remedy  for  a 
breach  of  n  condition. 

3  '  This  is  all  void  ;  for  the  gift  is  [qu.  treated  in  the  text  as]  a 
conditional  gift,  and  not  in  fee  tail.'    Note  in  MS.  N. 


I,  *94  b.]    OF  CONDITIONAL  PURCHASES.   197 

6.  If  the  donor  say,  I  give  thee  this  land  because 
thou  hast  served  me  well :  although  the  cause  may  be 
false,  it  does  not  follow  that  the  gift  is  not  good.  And 
in  the  following  case  also  the  gift  shall  be  good  and 
firm,  whether  the  cause  be  true  or  false :  I  give  thee 
this  land  because  thou  wilt  serve  me  well.  But  if  the 
donor  say,  I  give  thee  this  land  if  thou  wilt  serve  me 
well,  the  gift  here  is  doubtful  and  in  suspense  until  the 
condition  is  satisfied.^ 

Y.  Where  a  gift  is  made  upon  condition  of  something 
in  future,  and  the  condition  is  possible,  there  the  gift 
will  be  deferred  until  satisfaction  of  the  condition  ; 
and  if  the  purchaser  brings  any  plaint,  the  donor  may 
plead  this  exception,  that  no  action  or  plaint  can  accrue 
to  him  until  after  satisfaction  of  the  condition;  as 
where  a  gift  is  made  to  another  on  condition  that  he 
give  101.  But  if  the  condition  be  impossible,  then  the 
gift  is  of  no  virtue  or  force,  as  if  the  condition  be  thus : 
I  give  to  thee,  upon  condition  thou  procure  me  the 
moon. 

8.  Some  gifts  depend  upon  the  will  of  another,  as  in 
the  following  case  :  *I  give  to  thee,  if  John  is  willing ; 
here  the  purchase  is  of  no  avail,  unless  John  assents  to 
it.  Some  purchases  are  casual,  as  in  this  case  :  I  give 
to  thee  to  hold,  if  I  shall  be  made  a  bishop. 

1  '  What  is  here  said  of  gifts  made  for  a  certain  cause,  and  also 
of  gifts  depending  upon  the  will  of  another  or  upon  chance,  is 
bad  law,  (rien  ne  valt.)  For  it  matters  not  (il  ne  me  chaud)  for 
what  cause  you  give,  so  you  put  me  in  seisin  to  have  and  to  hold 
to  me  and  my  heirs  of  the  chief  lord.     Note  in  MS.  N. 


198  BRITTON.  [I,  *95. 

9.  If  a  gift  be  made  upon  more  conditions  than  one, 
and  one  of  the  conditions  is  satisfied,  the  gift  will  be 
valid,  if  the  conditions  are  several  ;  but  if  thev  are 
joint,  then  all  must  be  fulfilled  to  make  the  purchase 
effectual.  For  it  is  not  the  same  thing  to  say,  I  give 
to  thee,  if  thou  do  such  a  thing  or  such  a  thing,  and  to 
sav,  I  ffive  if  thou  do  such  a  thing-  and  such  a  thinsr. 
jointly.  For  in  one  case,  satisfaction  of  one  of  the  con- 
ditions is  sufficient,  and  in  the  other  it  is  not  sufficient 
unless  all  the  conditions  are  satisfied. 

10.  Another  kind  of  condition  which  is  permissible 
in  gifts  is  negative,  as  where  a  gift  is  made  to  the 
youngest  son,  or  to  a  stranger,  to  have  and  to  hold  to 
him  and  his  heirs,  if  the  elder  brother  shall  have  no 
issue  of  his  own,  or  no  issue  by  such  a  wife.  So,  where 
the  gift  is  made  to  the  purchaser,  to  have  and  to  hold 
to  him  and  the  heirs  of  his  body  begotten,  and  if  he 
shall  have  no  issue,  that  then  the  gift  sliali  revert  to 
the  donor,  or  to  certain  other  persons,  to  hold  jointly, 
or  severally,  one  after  the  other. 

11.  There  are  other  kinds  of  conditions,  which  are 

double ;  as  where  the  donor  says,  if  thou  shalt  havie  no 

heirs  of  thy  "body  begotten,  or  if  thou  shalt  have  heirs 

and  they  shall  fail,  then  the  gift  shall  revert  to  me  and 

my  heirs :  or  thus,  if  such  a  thing  do  not  ha{)pen,  then 

thou  shalt  have  the  land  for  ever.^     Gifts  mjiy  also  be 

made  upon  several  conditions,  as  in  this  example  :  to 

have  and  to  hold,  so  thou  do,  or  so  thou  do  not  such 

1  This  example  appenrs  imperfect.  Probably  some  words  are 
lost  out  of  the  text. 


J,  *95  b.]    OF  CONDITIONAL  PURCHASES.   199 

and  such  things,  and  if  thou  do,  the  gift  shall  return 
to  me  ;  or  thus,  to  have  and  to  hold  so  thou  do  not  do 
such  a  thing,  or  several  things,  without  my  leave,  and 
if  thou  so  do,  then  it  shall  be  lawful  for  me  to  put  my- 
self in  seisin  of  the  gift  and  retain  it  for  ever. 

12.  If  the  purchaser  do  not  in  such  case  according  to 
the  covenant,  and  the  donor  throw  himself  into  seisin, 
he  shall  keep  it ;  and  if  he  be  thereof  ejected  or  de- 
forced, he  shall  recover  by  this  assise.  But  if  he  can- 
not in  any  way  put  himself  in  seisin,  then  he  may  avail 
himself  of  our  writ  of  covenant,  in  which  the  process 
is  by  the  great  and  little  Cape^  as  in  a  real  action. 
And  if  the  charters  or  writings  of  the  original  contract 
are  denied  in  judgment,  it  will  not  avail  to  prove  the 
•deeds  without  making  proof  withal  of  the  condition 
being  satisfied.  For  these  two  things  may  well  stand 
together,  that  the  deeds  may  be  legal,  and  that  the 
condition  may  not  have  been  satisfied. 

13.  A  condition  sometimes  bars  the  descent  of  an 
inheritance  to  the  right  heirs ;  as  in  this  manner :  I 
give  thee  such  land  for  a  certain  term  ;  *and  if  I  die 
Avithin  that  time,  then  the  land  shall  remain  to  thee 
and  thine  heirs,  or  for  term  of  life,  or  for  other  term. 
Sometimes  a  condition  makes  a  freehold  of  a  term,  and 
the  reverse ;  as  in  this  case  :  I  give  thee,  to  have  and 
to  hold  during  the  life  of  the  purchaser,  and  for  such  a 
time  over ;  and  if  thou  die  within  that  term,  then  I 
will  that  thy  heirs  or  thy  executors  shall  hold  the  gift 
for  the  same  term.  The  chief  lords  however  cannot  be 
deprived  of  an\'thing ;  for  a  term  does  not  take  away 


200  BRIXTON.  [I,  *9fi. 

wardship,  but  only  delays  it  until  a  certain  time  ;  un- 
less the  heir  is  an  idiot,  in  which  case  the  lord  loses 
his  wardship  and  the  farmer  his  term,  until  it  be  other- 
wise ordained,  at  least  during  the  life  of  the  idiot. 
This  rule  was  laid  down  by  the  common  assent  of  the 
great  lords  of  the  realm  and  by  the  provision  of  Robert 
Walrand,  in  whose  heir  and  the  heir  of  his  heir  the 
statute  first  took  effect.^ 

14.  If  a  gift  is  made  on  condition  that  if  the  donor 
shall  pay  so  much  at  certain  days  and  at  a  certain  place, 
the  gift  shall  return  to  the  donor,  and  if  not,  the  land 
shall  remain  to  the  creditor  in  fee,  to  him  and  his  heirs  ; 
now  although  it  be  so  expressed  in  the  charter  of  feoff- 
ment, if  the  creditor  dies  before  the  day  when  the  pay- 
ment should  be  made,  his  heirs  can  demand  nothing 
■"'before  the  day ;  as  shall  be  mentioned  among  the 
exceptions  in  Mortdancester. 

15.  A  fee  may  be  made  to  arise  out  of  a  term  ;  as  is 
the  case  where  one  going  a  pilgrimage  leases  his  land 
for  a  term  of  years  with  this  condition,  that  if  he  does 
not  return,  the  land  shall  remain  in  fee  to  the  termor ; 
such  a  condition  shall  always  be  a  bar  to  the  action  of 
the  heir  of  the  pilgrim.  And  thus  it  appears  that 
feoffments  and  purchases  may  be  conditional  as  well 
as  simple  and  without  condition. 

^  '  See  Coke,  Inst.  pt.  2.  p.  109.  Robert  Walrand  was  a  Justici- 
ary of  the  latter  part  of  the  reign  of  Henry  III.  (Foss,  Judges  of 
England,  vol.  iii.  p.  503.) 


1,  ^96  b.}  OF  KEYERSIONS  AND  ESCHEATS.  201 


CHAPTEE  VI. 

Of  Reversions  and  Escheats. 

1.  A  purchase  sometimes  reverts  to  the  donor ;  as  is 
the  case  with  a  gift  made  in  marriage,  for  default  of 
heirs.  So  likewise  by  form  of  gift ;  and  sometimes  for 
want  of  the  words  "heirs  of  assigns,"  and  for  want  of 
"  assigns  of  assigns.''  It  is  therefore  necessary  in  every 
good  purchase  that  the  feoffment  be  made  to  have  and 
to  hold  to  the  purchaser,  his  heirs  and  assigns,  and 
to  the  heirs  and  assigns  of  his  heir  and  to  the  heirs 
and  assigns  of  his  assigns.  For  if  no  mention  is 
made  of  any  of  these,  and  alienation  is  afterwards 
made  contrary  to  the  form  of  the  gift,  the  donor 
may  have  his  action  for  the  reversion.  Land  also 
returns  to  the  feoffor  or  his  heirs,  or  to  his  assigns  by 
virtue  of  a  fine  levied  in  our  court,  when  it  has  been 
leased  for  term  of  life  or  for  years,  however  long  the 
term  may  be. 

*2.  Some  purchases  escheat  to  the  lord  of  the  fee,  as 
where  the  purchaser  is  guilty  of  felony  and  undergoes 
judgment.  So  also,  when  the  purchasers  die  without 
heirs.  So,  when  the  tenants  abandon  their  tenements. 
In  these  cases,  if  the  lords  do  but  set  their  foot  upon 
the  land  in  name  of  seisin,  they  are  sufficiently  seised 
in  respect  of  the  proprietary  right  which  descended  to 
them,  unless  they  are  barred  by  negligence  on  account 


202  BRITTO:^^.  [I,  "^1 

•of  too  long  a  delay.  But  if  they  put  themselves  in 
seisin  as  soon  as  the  fee  is  vacant,  or  within  four 
days  after  the  vacancy,  if  the\'  are  resident  near,  or 
within  fifteen  days  if  they  live  at  a  distance,  or 
within  a  still  longer  time  as  is  mentioned  below,  or  any 
other  person  does  so  in  their  names,  and  they  are  after- 
wards ejected  or  deforced,  they  shall  have  their  recov- 
ery by  this  assise.  But  if  they  delay  too  long,  it  ma}"^ 
then  be  more  troublesome  to  eject  the  tenants  than  to 
proceed  by  judgment  of  our  court.  It  is  therefore  their 
better  course  to  recover  their  right  by  writ  of  es- 
cheat. 

3.  If  a  villain  or  a  sokeman  make  a  gift  or  feoffment 
•of  the  villenage  of  their  lords,  or  if  the  lord's  bailiff  or 
farmer,  or  other  in  whose  person  both  rights  are  not 
united,  make  a  gift  of  what  belongs  to  another,  or  if 
a  married  woman  disposes  of  her  own  property  without 
her  husband,  *the  seisin  may  in  the  same  manner  bo 
taken  back,  whoever  be  tenant,  whether  the  disseisor 
or  his  son,  and  although  the  latter  may  be  under  age, 
provided  it  be  done  in  time ;  but,  if  not,  it  is  then  bet- 
ter for  him  to  proceed  by  judgment  of  our  writ  of  entry 
than  by  his  own  force. 


I,  -^97  5.]  or  PURCHASES  BY  VILLAINS.       203 


CHAPTER  VIL 
Of  Purchases  hy  Villains. 

1.  Villains  may  purchase  as  well  as  freemen ;  but 
nevertheless  whatsoever  a  villain  fairly  purchases,  he 
purchases  to  the  use  of  his  lord,  unless  the  purchase  be 
made  of  the  lord,  provided  that  the  lord  is  in  seisin  of 
him  and  of  his  chattels  and  of  his  suit ;  so  that  the  lord 
may  enter  upon  the  purchase  of  his  villain,  later  or 
sooner,  as  he  pleases.  For  in  this  case  no  time  runs 
against  him.  Villains,  therefore,  ejected  by  their 
lords,  in  whosesoever  fee  the  purchase  may  be,  shall 
not  recover  against  their  lords  by  this  assise,  or  have 
any  other  remedy.  The  lord  however,  after  he  has 
been  seised  of  the  purchase,  and  of  the  charter  of  his 
villain,  may  give  to  his  villain  other  land  to  the  value, 
or  the  same  land,  *to  hold  of  him  in  villenage,  or  ma}^ 
thenceforth  hold  it  in  demesne.  But  in  this  case  the 
the  lord  will  be  bound  to  perform  the  services  which  are 
due  to  the  chief  lord  in  respect  of  such  purchase. 

2.  But  if  the  villain  purchases  any  land  or  other  tene- 
ment from  his  lord  himself,  who  enfeoifs  him  to  have 
and  to  hold  to  him  and  his  heirs,  whether  the  purchase 
is  given  to  be  held  by  free  services  or  by  villain  cus- 
toms, and  though  there  is  to  be  raerchet  or  redemption 
of  flesh  and  blood  for  the  tenement,  vet  if  the  lord  after- 


204  I3KITT0K  [I,  *98. 

wards  ejects  the  villain  from  that  or  any  other  purchase^ 
the  purchaser  shall  recover  his  seisin  by  this  assise. 
For  since  the  lord  intended  in  his  feoffment  that  the 
villain  should  have  heirs,  he  thereby  renounced  every 
exception  of  villenage  on  account  of  the  villain  services^ 
issuing  therefrom,  so  that  this  will  avail  him  nothing. 
For  it  is  not  the  same  thing  to  hold  freely,  and  to  hold 
by  free  services.  For  whosoever  holds  to  him  and  his- 
heirs,  although  he  does  not  hold  by  free  services,  yet 
it  follows  not  that  he  does  not  hold  freely,  that  is,  as  a 
freeman.  And  by  such  feoffment  the  villain  becomes 
a  freeman,  whether  homage  be  expressed  or  not. 

3.  And  if  a  villain  purchase  tenements  to  himself 
and  his  heirs  of  any  other  than  his  lord,  and  some  other 
than  his  lord  eject  him,  *the  villain  may  recover  b}' 
this  assise  against  any  person  except  his  lord,*  if  the 
lord  be  not  seised  of  him,  his  chattels,  and  his  suit, 
as  in  the  case  of  a  villain  fugitive  from  his  lord, 
and  claiming  freedom  by  any  title,  as  by  clergy,  or 
long  continuance  in  a  free  condition  without  being 
claimed  by  his  lord,  or  by  any  other  title,  as  has  been 
said  in  the  chapter  concerning  Naifty.  And  therefore 
if  such  villains  die  in  that  condition,  and  the  lords  put 
out  their  heirs,  they  shall  recover  by  assise  of  Mort- 
dancester.  For  where  assise  of  Novel  Disseisin  holds 
in  the  case  of  the  father,  there  assise  of  Mortdancester 
will  lie  for  his  heir. 

^  Some  words  equivalent  to  '  and  even  against  his  lord '  have 
probably  slipped  from  the  text  here.  See  above,  1.  i.  c.  32.  s.  7. 
p.  199  ;  and  below,  c.  18.  s.  2,  3. 


I,  *98  h.]   OF  PURCHASES  BY  VILLAINS.      205 

4.  If  one  who  is  villain  to  more  than  one  lord  pur- 
chases to  himself  and  his  heirs,  whichever  of  his  lords 
shall  first  oust  him  may  retain  the  seisin  for  ever ;  ^  and 
if  all  the  lords  seize  the  purchase  of  the  villain  at  the 
same  time,  then  let  it  be  theirs  to  hold  in  common, 
until  they  have  divided  it. 

5.  If  the  villain  sells  in  fee  the  purchase  which  he 
lias  bought  in  fee,  before  the  lord  shall  have  taken  and 
seized  it,  and  the  lord  ejects  the  free  purchaser  after 
he  has  had  peaceable  seisin  of  the  gift  of  the  villain, 
the  person  ejected  shall  recover  his  seisin  by  this  assise ; 
and  the  lord  will  be  for  ever  after  barred  of  his  action 
by  his  negligence. 

6.  When  any  villain  who  is  a  fugitive  from  his  lord 
makes  a  purchase,  the  lord  cannot  have  any  action  or 
set  up  any  *claira  against  this  purchase,  until  he  has 
recovered  and  established  his  right  to  the  villain.  And 
if  he  has  taken  anything  from  him,  the  villain  need 
never  answer  his  demand,  until  he  has  fully  restored 
to  him  the  land  and  the  chattels  found  out  of  his  fee, 
w^hich  his  lord  has  taken  from  him.  This  is  by  reason 
of  the  words  in  writ,  '  with  his  chattels  and  all  his 
suit.'  For  if  the  villain  was  not  fully  reinstated,  and 
put  in  possession  of  the  same,  the  words  of  the  writ 

1 '  When  several  parceners  are  seised  of  a  villain,  if  he  purchase 
in  the  name  of  one  parcener,  the  property  accrues  to  that  par- 
cener ;  if  in  the  name  of  all,  to  all  ;  if  in  his  own  name,  the  one 
who  enters  may  hold  it,  and  the  others  are  without  recovery. 
For  if  the  purchase  of  a  villain  be  aliened  before  the  entry  of  the 
lord,  no  advantage  can  accrue  to  him.'  (Note  in  MS.  N.)  The 
several  cases  are  similarly  distinguished  by  Bracton,  f.  25  5. 


206  BRITTON.  [I,  *99. 

Avoukl  be  thrown  away,  and  our  precept  would  be  vain, 
in  commanding  a  man  to  be  put  in  possession  of  atbing 
of  which  he  is  himself  seised.  But  when  he  has  proved 
his  title  to  the  person,  then  he  may  by  judgment  and 
by  law  seize  the  lands  and  chattels  and  all  the  purchase 
of  his  villain. 


CHAPTER  VIII. 

Of  Charters. 

1,  It  has  been  said  above  in  the  chapter  concerning 
Debt  that  it  is  necessary  for  an  obligation  to  be  clothed 
in  five  different  ways.  The  same  clothing  is  also  neces- 
sary for  gifts  and  purchases.  And  as  to  that  clothing 
by  writing,  which  is  called  Charter,  it  must  be  under- 
stood that  there  are  several  kinds  of  charters,  as 
charters  of  kings  and  charters  of  private  persons  ;  and 
of  the  king's  charters  some  are  single,  some  common, 
some  universal.  *0f  simple  charters,  some  are  of  pure 
feoffment  and  single,  others  of  conditional  feoffment ; 
some  are  charters  of  confirmation,  and  some  of  quit- 
claim.i 

2.  Single  charters  of  pure  feoffment  without  condi- 

1  Tliis  is  from  Bracton  ;  but  there  is  some  confusion  arising 
from  the  equivocal  use  of  the  word  simple.  The  word  privata  is 
similarly  employed  in  Bracton  to  denote,  on  the  one  hand,  a 
charter  made  by  a  private  person  ;  and  on  the  other,  one  granted 
by  the  king  to  an  individual,  in  distinction  from  one  granted  to 
a  community  or  to  the  entire  kingdom. 


I,  *99  h.]  OF  CHARTERS.  207 

tion  ought  to  remain  with  the  purchasers  and  their 
heirs.  Conditional  charters  ought  to  be  indented  in 
two  or  three  parts,  so  that  one  part  sealed  by  the  pur- 
chaser may  remain  with  the  donor,  and  another  part 
sealed  with  the  seal  of  the  donor  may  remain  with  the 
purchaser  and  his  heirs,  and  the  third  part  be  put  into 
an  impartial  hand,*  so  that  no  one  may  afterwards 
demand  a  right  in  anything  by  form  of  gift  or  by  con- 
dition, but  that  our  court  may  be  certified  of  the  form 
by  the  charter.  For  no  action  or  exception  avails  un- 
less it  can  be  proved,  and  it  is  useless  to  pray  the  court 
that  the  adverse  party  may  be  compelled  to  produce  a 
deed,  because  no  one  is  obliged  to  arm  his  adversary. 

3.  As  to  royal  charters,  whether  they  are  allowable, 
or  false  or  doubtful,  can  be  adjudged  by  none  but  our- 
selves. For  it  is  the  office  of  the  author  to  determine 
and  judge  concerning  them.  "Wherefore  we  Avill  that 
such  doubts  and  illegalities  be  referred  to  none  but 
ourselves,  and  that  all  interpretations  be  made  by  us. 

*4.  In  single  gifts  it  is  sufficient  to  say  thus :  '  Know 
all  men  present  and  to  come  that  I,  John,  have  given 
to  Peter  so  much  land  with  the  appurtenances  in  such 
a  town ; '  and  it  is  proper  to  specify  between  what 
boundaries.  And  it  is  not  necessary  to  say,  '  to  Peter 
and  his  heirs,'  where  Peter  intends  to  purchase  fee  and 
frank  tenement,  but  the  heirs  will  be  specified  after- 
wards, thus  :  '  To  have  and  to  hold  to  the  same  Peter 

1  Bracton  advises,  that  the  deed  should  be  either  in  two  parts, 
or,  if  in  one,  should  be  deposited  in  oequa  manu.  Bracton, 
133  6.    So  Flete,  196  (§  2). 


208  BIUTTON.  [I,  *100. 

and  his  heirs,'  Neither  is  it  necessar}'^  to  say,  '  grants 
and  confirms,'  though  it  is  usual  to  do  so  ;  nor  is  there 
occasion  to  say,  '  for  homage,'  nor  '  for  service,'  if  it  is 
not  intended  by  the  contract ;  for  however  homage  or 
service  are  expressed  in  the  charter,  yet  the  chief  lord 
of  the  fee  shall  not  lose  anything.  Some  persons  how- 
ever may  do  so  in  an  excliange  of  seigniories,^  as  in 
making  a  feoffment  by  custom  of  knight's  service ;  and 
in  such  case  it  is  proper  to  specify  the  homage  in  the 
feoffment.  Appurtenances  are  named  to  include  both 
corporeal  things,  such  as  hamlets  appurtenant  to  chief 
manors,  and  common  of  pasture,  turbar}'^,  fishery,  or 
the  like ;  and  things  incorporeal,  as  franchises,  and 
servitudes  of  tenements.  Then  follows :  '  to  have  and 
to  hold  the  aforesaid  land  with  the  appurtenances,  to 
the  same  Peter  and  his  heirs,  doing  therefore  to  the 
chief  lords  of  the  fee  the  services  thereto  belonging.' 
*  And  it  should  be  understood,  tliat  it  is  a  very  necessary 
clause  to  specify  the  service  by  number,  quality,  and 
quantity,  and  to  what  persons  they  are  (Uie,  so  that 
neither  the  lords  of  tiie  fee  nor  any  other  may  demand 
more  than  right,  without  the  feofl'ors  being  specially 
obliged  to  acquit  and  defend  the  purchasers.  Then 
follows:  'for all  services, customs, and  demands.'  And 
if  the  gift  is  made  for  term  of  life,  or  for  term  of  years 

1  There  is  a  diflficulty  in  the  interpretation  of  this  passage, 
whicli  I  confess  I  cannot  clear  up.  Tlie  full  effect  of  the  statute 
Quia  enip'ores  terrarum,  recently  passed  at  the  time  when  tiiis 
book  \\;is  composed,  does  not  appear  to  have  been  understood. 
See  p.  236  note. 


I,  *100  J.]  OF  CHAETERS.  209 

over,  or  in  marriage,  or  in  fee  tail,  or  upon  cohdition, 
the  condition  shall  be  speciiied  in  the  charter  indented, 
as  above  mentioned. 

5.  In  absolute  feoffments  it  is  not  proper  to  say,  '  to 
hold  of  tlie  donor  and  of  his  heirs ; '  for  whatever  be 
said,  it  will  not  follow  but  that  the  purchaser  wdll 
become  tenant  to  the  lord  of  the  fee,  in  chief  without 
mesne.  And  beyond  this  there  is  no  occasion  to  say, 
^  freely,  quietly,  well,  and  in  peace.'  For  these  words 
belong  rather  to  the  form  than  to  the  substance  of  the 
business ;  but  if  such  words  are  put  in,  they  are  harm- 
less. "With  respect  to  tenements  given  in  marriage, 
the  form  and  issue  supply  the  place  of  a  charter ;  never- 
theless a  charter  does  no  harm. 

G.  Sometimes  a  gift  may  be  enlarged,  sometimes 
restricted.  It  may  be  enlarged  in  this  manner:  'to 
have  and  to  hold  to  the  aforesaid  Peter,  his  heirs,  and 
assigns ; '  and  sometimes  further  thus  :  '  and  to  the 
heirs  and  assigns  of  his  assigns.'  *It  may  be  restricted 
as  follows :  '  to  hold  until  I  pay  him  ten  pounds,'  or 
'until  I  or  my  heirs  pay  him  ten  pounds,'  or  'until  I 
or  my  heirs  or  assigns  pay  Peter  or  his  heirs  or  assigns.' 
In  another  way  thus :  '  to  hold  to  him  and  his  heirs 
without  making  alienation,'  or  'without  making  aliena- 
tion to  such  a  one,'  or  '  except  to  such  a  one,'  or  thus, 
■'  to  hold  during  the  life  of  Peter,  and  after  his  decease 
that  the  gift  revert  to  Thomas  and  the  heirs  is- 
suing from  him,  and  if  he  has  no  such  heirs,  then 
return  to  Theobald,  his  heirs  and  assigns.'  And 
in  all  these  cases  we  will  that  the  intention  of  the 
14 


210  BRITTON.  [I,  *100  h. 

donor  be  observed,  so  far  forth  as  law  and  right  will 
allow. 

Y.  It  must  be  understood  that  no  feoffor  is  bound  b}^ 
the  general  clause  of  acquittance  to  acquit  the  fee  from 
making  contribution  for  the  knighting,  of  the  lord's 
eldest  son,  or  the  marrying  of  his  eldest  daughter,  nor 
from  sheriff's  aid,  nor  from  common  amercements  or 
fines  of  the  county  or  hundred,  nor  from  suits  due  to 
the  county  or  hundred  court  or  elsewhere.  Any  one, 
however,  may  by  a  special  clause  bind  himself  to  acquit 
his  purchaser  from  all  these  services,  and  such  obliga- 
tions are  enforced  by  writs  of  mesne. 

8.  Then  there  is  the  clause, '  And  I  and  my  heirs  will 
warrant  the  tenement  with  the  appurtenances,  and  will 
acquit  and  defend  the  same  to  the  aforesaid  Peter,  his 
heirs  and  assigns  for  ever.'  And  this  clause  of  war- 
ranty may  be  more  full  thus :  '  his  heirs  and  assigns 
and  the  assigns  of  his  assigns.'  And  by  reason  of  this 
clause  it  is  useful  in  many  cases  for  purchasers  to  take  to 
themselves  the  charters  of  their  feoffors,  so  that  if  tlie 
the  feoffors  have  nothing  whereby  they  can  warrant  if 
need  be,  then  the  purchasers  by  virtue  of  the  charters  of 
their  feoffors  may  vouch  to  warrant  the  feoffors  of  their 
feoffors,  to  which  voucher  the}'^  shall  be  admitted  Avhere- 
soever  it  is  found  that  the  warranty  of  the  first  feoffors 
extends  to  warrantj^^  without  mesne.  Acquittance  and 
defence  are  inserted  to  the  intent  that  the  person  of 
whom  the  purchaser  is  to  hold  in  chief  may  be  obliged  to 
acquit  and  defend  him,i  in  case  any  lord  paramount  or 

1  This  sentence  appears  to  imply  that  the  purchaser  will  hold 


1,'*101.]:  OF  CHAETEKS.  211 

other  should  demand  of  him  other  services  than  the 
*purchaser  shall  owe  to  the  lord,  of  whom  the  purchaser 
liolds  in  chief. 

9.  As  to  charters  of  corafirraation  and  of  quitclaim, 
lot  every  one  know  that  such  charters  made  between 
])ersons  out  of  seisin  of  any  right  are  of  no  avail,  where 
the  parties  to  them  are  divested  of  the  right  of  posses- 
sion or  the  right  of  property.^  Therefore  it  is  a  good 
precaution  for  those  who  are  having  charters  prepared, 
to  take  care  that  the  date  of  the  place  and  of  the  year 
be  inserted. 

10.  Afterwards  let  some  of  the  neighbours  who  are 
freemen  be  called  as  witnesses,  in  whose  presence  the 
charter  should  be  read  and  sealed,  and  the  names  of  the 
witnesses  should  be  written  in  the  charter.  It  would 
also  be  a  good  precaution  to  procure  the  seals  of  the 
witnesses  to  be  affixed,  together  with  the  seal  of  the 
lord  of  the  fee ;  or  in  the  presence  of  the  parties  to 
have  the  charter  enrolled  in  a  court  of  record.  And  al- 
though the  witnesses  be  not  called,  it  is  sufficient  if  the 
deed  be  afterwards  recorded  and  acknowledged  before 
them.     If   the  feoffor  has  no  seal  of  his  own,  a  bor- 

of  tlie  donor,  who  promises  to  acquit  and  defend  him,  and  there- 
fore to  be  inapplicable  to  the  law  as  altered  by  the  statute  Quia 
emptores  terrarain.     (18  Ed.  I.  c.  1.) 

1  This  passage  appears  to  be  taken  from  Fleta,  where,  however, 
the  text  is  scarcely  less  obscure.  I  understand  the  meaning  to 
be,  that,  in  order  to  give  validity  to  a  charter  of  confirmation, 
the  confirmee  must  be  in  possession,  and  the  confirmer  miist  have 
the  right  of  property. 


212  BRITTOK  [I,  noi  5. 

rowed  seal  will  be  sufficient.  There  are  many  modes 
of  purclmse  in  which  no  charter  is  required  ;  as  by  law- 
ful judgment  of  our  court;  by  surrender;  by  release 
and  quitclaim ;  by  default ;  by  assignment  of  dower  ; 
by  having  issue  by  the  law  of  England  ;  and  by  several 
other  wa3's. 

11.  But  inasmuch  as,  although  a  charter  is  made, 
witnesses  called,  and  the  deed  sealed  in  their  presence, 
yet  whatever  has  been  done  and  said  avails  nothing 
unless  livery  of  seisin  be  made  by  *the  donor  to  the  pur- 
chaser, we  must  therefore  say  somewhat  concerning 
induction  into  seisin,  how  seisin  ought  to  be  delivered, 
and  how  purchasers  ought  to  receive  it,  of  what  things 
a  man  may  be  put  into  seisin  immediately,  and  of  what 
not  until  a  certain  time ;  and  of  what  things  induction 
into  seisin  is  unnecessary. 


CHAPTER  IX. 

Of  Seisins. 

1.  Forasmuch  as  the  mere  grant  and  authorization 
of  the  donor  is  not  in  general  sufficient  for  purchasers, 
unless  possession  follows,  with  respect  to  possessions 
it  must  be  understood,  that  possession  is  properly  the 
seisin  and  holding  of  anj'thing  in  fact  and  in  intention, 
together  with  the  property.  There  are  some  things 
however  of  which  one  cannot  commonly  retain  posses- 
sion or  seisin  ;  for  of  things  incorporeal  there  can  be  no 


I,  *102.]  OF  SEISIKS.  213 

delivery ;  nor  any  proper  seisin  without  a  corporeal 
substance.  But  usage  by  long  prescription  supplies  in 
time  a  legal  title. 

2.  Livery  and  induction  of  seisin  is  a  voluntary  trans- 
lation of  a  corporeal  thing  belonging  to  the  person 
transferring  it  or  to  another,  from  the  seisin  of  the 
true  owner  to  the  person  of  the  purchaser,  whether 
the  owner  transfers  it  in  person,  or  by  another  on  his 
behalf  attorned  and  appointed  by  his  letters  patent. 
*Such  letters  should  be  in  duplicate,  one  to  remain  with 
the  attorney,  the  other  with  the  purchaser. 

3.  When  any  livery  of  seisin  is  to  be  made,  the  donor 
should  first  remove  all  his  movable  things  which  he 
has  in  the  tenement,  and  his  wife  and  children  and  all 
his  family,  so  that  there  be  nothing  of  his  which  he 
has  not  either  removed  or  sold  or  let  to  farm,  so  that 
there  may  be  no  presumption  that  the  donor  intends 
to  retain  anything.  For  as  long  as  he  has  any  inten- 
tion of  retaining,  no  freehold  ever  accrues  to  the  pur- 
chaser. 

4.  But  if  the  donor  vacates  the  tenement  in  fact  and 
in  intention,  and  delivers  the  seisin  thereof  to  the 
purchaser,  who  receives  it  in  fact  and  in  intention,  and  so 
keeps  it,  a  freehold,  and  fee  (if  the  purchase  be  in  fee) 
immediately  accrue  to  the  purchaser,  by  only  setting  his 
foot  in  the  tenement,  by  virtue  of  the  right,  and  of  the 
union  of  wills  which  are  joined,  to  wit,  of  the  true  owner 
in  whose  person  both  the  right  and  the  seisin  were 
united,  and  of  the  purchaser  Avho  receives  both  the 
right  and  the  seisin.     Therefore,  if  any  one  ejected  the 


214  BRITTOJSr.  [I,  *102  h. 

purchaser  from  the  land  immediately  after  the  gift, 
he  should  recover  it  by  this  assise  as  his  freehold, 
althoug-h  he  had  not  taken  any  esplees,  by  virtue  of  the 
seisin.  For  neither  user  nor  esplees  are  of  the  sub- 
stance of  the  gift,  but  are  equivalent  to  a  declaration 
and  evidence  of  seisin.  And  whereas  the  purchaser  will 
thus  have  had  the  seisin  in  deed  and  in  intention,  *so 
without  both  act  and  intention  he  can  never  so  lose  it, 
as  not  to  be  able  to  recover  it. 

5.  But  where  any  farmer  has  a  term  in  the  land,  and 
is  neither  ejected  nor  attorns  to  the  purchaser,  if  the 
donor  dies  during  that  term,  his  heir  may  recover  the 
land  by  reason  of  the  continuance  of  the  seisin  of  the 
termor,  who  occupied  it  in  the  name  of  the  donor. 
Wherefore  no  seisin  can  be  legally  delivered,  except  by 
judgment  of  our  court  unless  while  the  seisin  be  vacant. 
The  heir  also  shall  recover  seisin  in  case  the  seisin  of  the 
farmer  has  continued  with  that  of  the  purchaser,  inas- 

'  much  as  the  purchaser  never  had  peaceable  seisin  in 
the  lifetime  of  the  donor.  But  if  the  farmer  attorns 
to  the  purchaser,  although  he  continues  to  hold  his 
term,  provided  he  has  admitted  that  he  holds  of  the 
purchaser,  the  gift  is  not  thereby  of  less  validity  ;  iov 
in  such  case  the  feoffment  and  term  may  well  exist 
together  in  different  persons. 

6.  Where  there  is  nothing  of  the  donor's  in  the 
tenement,  and  the  tenement  is  a  principal  manor  or 
mansion,  there  it  is  enough  for  the  donor  in  the  pres- 
ence of  some  free  neighbours  as  witnesses,  and  of 
some  of  the  tenants,  to  deliver  seisin  to  the  })urchaser 


1,  *103.]  OF  SEISINS.  215 

by  the  hasp  or  ring  of  the  door,  or  by  shutting  the 
gate ;  and  thereby  the  purchaser  becomes  seised  not 
only  of  the  mansion,  but  of  whatsoever  was  named  in 
the  charter  and  was  properly  the  donor's,  annexed  to 
the  mansion,  as  demesnes,  rents,  woods,  *meadows,  pas- 
tures, and  other  frank  tenements.  But  if  a  villain  of  the 
<lonor  has  made  a  free  purchase,  of  which  the  donor  has 
never  been  seised,  the  purchaser  does  not  immediately 
become  seised  of  such  purchase.  If  seisin  is  to  be 
make  of  a  tenement  where  there  is  no  house,  then 
sufficient  livery  is  made  by  a  rod  or  by  a  glove  in  the 
presence  of  good  witnesses. 

7.  It  is  to  be  understood,  that  the  freehold  never 
validly  attaches  to  the  purchaser  until  it  is  extinct  in 
the  donor,  except  by  long  and  peaceable  seisin.  Nor 
•can  anything  prevent  the  freehold  from  remaining  in 
one  of  the  two  persons,  and  it  may  happen  to  remain 
in  the  person  of  the  donor,  although  the  donor  may 
intend  that  the  freehold  and  right  should  be  transferred 
to  the  person  of  the  purchaser,  and  although  he  may 
put  the  purchaser  in  seisin  thereof, — as  by  his  family 
or  chattels  remaining  in  the  tenement,  which  creates 
a  presumption  in  favour  of  the  heirs  of  the  donor,  that 
the  donor  retained  the  fee  and  freehold  in  intention,  al- 
though he  made  it  otherwise  appear  by  colour  of  deed. 
And  in  such  case  if  the  purchaser  be  ejected  by  the  heir 
of  the  donor,  he  shall  not  recover  by  this  assise,  by  rea- 
son that  the  donor  did  not  wholly  divest  himself  in  his 
lifetime,  but  the  purchaser  found  the  tenement  full,  and 
the  donor  always  in  seisin  by  his  chattels  and  family  ; 


216  BRITTON.         [I,  *103  5.,  *104. 

for  by  the  continuance  of  the  seisin  it  appears  that  the 
donor  did  not  intend  to  part  with  the  freehold.  *But 
if  the  chattels  be  stolen  or  otherwise  lost  upon  the 
tenement,  and  the  bailiffs  and  servants  of  the  donor  are 
ordered  by  him  from  that  day  forward  not  to  remain 
there,  unless  to  wait  upon  the  purchaser  as  owner  of 
the  tenement,  in  such  case  there  is  no  presumption 
that  the  donor  meant  to  retain  anything.  So  if  it 
was  not  by  the  donor's  consent  or  allowance  that  any 
of  his  family  or  of  his  chattels  remained  in  the  tene- 
ment in  his  name. 

8.  If  a  single  person  or  a  single  beast  abides  on  the 
part  of  the  donor  in  the  tenement  given,  the  donor 
thereby  retains  the  seisin  as  well  as  by  several ;  as  in  the 
case  of  a  feoffor  who  having  given  his  common  of 
pasture  still  causes  the  common  to  be  fed  by  one 
beast;  for  by  that  one  beast  the  donor  retains  all  the 
common.  So  a  lord  may  retain  a  rent  by  the  hand  of 
one  tenant,  where  several  tenants  are  jointly  bound 
to  pay  the  rent,  and  the  lord  has  sold  it  and  yet  retains 
the  rent,  as  above  said,  by  means  of  one  of  the  par- 
ceners. And  because  such  presumptions  are  prejudi- 
cial, it  is  proper  that  in  every  regular  livery  of  seisin 
the  possession  be  absolutely  vacant  before  the  free- 
hold can  attach  to  the  purchaser  by  the  livery. 

*9.  When  a  lawful  livery  of  vacant  seisin  has  been 
made  Avith  the  solemnity  of  witnesses,  so  that  the  donor 
is  voluntarily  ousted  of  the  seisin  and  the  purchaser  put 
therein,  the  donor  may  not  afterwards  repent  thereof. 
For  if  he  should  return  immediately  after  his  departure. 


I,  *104  J.]  OF  SEISINS.  217 

and  eject  the  purchaser,  the  ejected  would  recover  by 
this  assise. 

10.  If  the  donor  perchance  return  after  such  seisin 
made  to  the  purchaser,  and  pray  to  be  admitted  into 
the  tenement  as  a  stranger,  although  the  donor  die  in 
the  tenement,  yet  by  such  abode  and  such  seisin  no 
right  accrues  to  his  heirs,  unless  they  can  prove  that  the 
donor  conducted  himself  in  the  tenement  as  owner  in 
the  same  way  as  he  had  before  done,  and  not  as  bailiff 
or  servant  of  the  purchaser.  But  to  remove  all  disputes, 
it  is  better  for  donors  to  make  their  abode  elsewhere 
than  in  tenements  of  their  own  gift.  And  if  any  donor 
by  the  good  nature  of  the  purchaser  is  after  the  gift 
admitted  into  the  tenement,  and  the  purchaser  perceives 
that  the  donor  intends  to  eject  or  disturb  him  in  his 
seisin,  or  to  act  as  if  in  his  own  property,  let  him  im- 
mediately proceed  by  this  assise,  or  if  he  thinks  it  better 
eject  him  without  judgment.  And  if  the  assise  pass  in 
favour  of  the  purchaser  his  estate  is  so  far  confirmed. 

11.  If  the  donor  or  the  purchaser  dies  before  livery 
of  seisin,  ^nothing  accrues  by  the  gift  to  the  heirs  of 
the  purchaser,  nor  is  anything  lost  to  the  heirs  of  the 
donor ;  and  if  the  purchaser  thrust  himself  in  after  the 
decease  of  the  donor,  the  heir  of  the  donor  is  not  to  be 
prevented  from  putting  himself  in;  and  if  he  be  ejected 
or  disturbed,  he  shall  recover  by  this  assise.  And  if  by 
his  own  negligence  he  cannot  avail  himself  of  this  assise, 
he  shall  recover  by  assise,  of  Mortdancestor,  or  by  other 
writ  according  to  the  occasion. 

12.  If  any  person  has  made  a  purchase  in  another's 


218  BEITTO^\  [I,  *105. 

name,  and  by  virtue  thereof  keeps  himself  in  seisin, 
and  he  in  whose  name  the  purchase  is  made  disavows 
the  deed  and  the  purchase,  and  some  stranger  ejects 
the  procurator,  the  ejected  shall  not  recover  by  this 
assise,  because  he  did  not  hold  the  seisin  in  his  own 
name,  neither  shall  he  in  whose  name  the  purchase  was 
made  recover,  since  he  never  was  in  seisin  either  in 
deed  or  in  intention.  Therefore,  as  the  freehold  is  not 
in  the  heirs  of  the  purchaser,  it  still  remains  in  the 
donor,  and  in  such  case  the  donor  shall  recover  by  this 
assise.  Children  however  under  age,  and  such  as  want 
discretion,  cannot  to  their  own  detriment  disavow  a 
purchase ;  for,  as  a  general  rule,  their  estate  may  be 
rendered  better  but  not  worse. 

13.  If  any  donor  appoints  a  servant  or  friend  to  put 
the  purchaser  in  seisin,  and  livery  of  seisin  is  accord- 
ingly made  to  the  purchaser  in  the  lifetime  of  the  feof- 
for, the  feofment  shall  be  good.  *So  likewise,  if  livery 
be  made  soon  after  the  death  of  the  feoffor,  before  the 
purchaser  knows  of  his  death.  But  if  the  heir  of  the 
feoffer  after  his  death  prohibits  the  seisin,  before  livery 
is  made  to  the  purchaser,  the  gift  will  be  annulled,  and 
the  heir  shall  recover  the  tenements,  because  his  an- 
cestor died  seised. 

14.  Advowsons  of  churches  cannot  be  given  or  pur- 
chased simply  without  some  corporeal  thing  annexed, 
as  soil,  rent,  or  other  thing  issuing  out  of  the  soil.  And 
even  if  they  should  be  so  aliened,  yet  purchasers  can- 
not be  in  full  seisin  of  the  advowsons  until  they  have 
presented  to  the  churches,  and  their  presentees  have 


I,  *105  h.-]  OF  SEISINS.  219 

been  admitted  and  instituted  by  the  bishop.  For  if  the 
purchaser  sell  the  advowson  before  he  has  been  so  seised 
by  his  clerk,  and  the  buyer  be  impleaded  by  another, 
and  thereupon  vouches  his  feoffor  to  warranty,  the 
feoffor  may  plead  that  he  is  not  bound  to  warranty,  by 
reason  that  he  never  was  seised  of  the  advowson,  the 
church  not  having  been  void,  but  the  seisin  still  re- 
mains in  the  first  donor  by  reason  that  it  never  took 
affect  in  the  person  of  another.  And  this  reason  would 
be  allowable,  inasmuch  as  no  one  can  give  that  which 
he  hath  not, — although  the  feoffor  or  the  purchaser 
was  fully  seised  of  the  manor  with  all  the  appurte- 
nances. 

15.  It  is  to  be  understood,  that  in  some  cases  an  ad- 
vowson may  be  included  in  appurtenances,  and  in  some 
not.  For  if  one  give  a  manor  with  all  the  appurte- 
nances without  any  reservation  being  specified  in  the 
gift,  and  the  advowson  of  one  or  more  churches  is  ap- 
pendant thereto,  in  such  a  case  the  purchaser  purchases 
the  advowsons  under  the  word  appurtenances.  But 
where  the  donor  gives  the  manor  entirely  or  by  parcels, 
and  in  each  gift  the  appurtenances  are  expressed,  yet 
if  the  donor  reserves  to  himself  any  parcel  of  the 
whole,  entire  with  the  appurtenances,  in  such  case  the 
advowson  remains  in  this  parcel,  unless  the  advowson 
is  specified  in  the  alienation.  So  if  the  manor  be  aliened 
in  parcels  to  divers  persons,  without  anything  being  re- 
served to  the  donor,  and  each  parcel  be  aliened  witli 
the  appurtenances  without  specifying  the  advowson, 
the  advowson  shall  belong  to  the  last  purchaser. 


220.  BKITTON.  [I,  *106. 


CHAPTER  X. 

Of  Purchase  of  Rent. 

1.  There  still  remains  another  kind  of  purchase, 
which  is  made  by  attornment  of  rent  or  other  service, 
with  or  without  the  consent  of  the  tenants ;  as  where 
one  attorns  his  tenant  to  become  subject  to  a  stranger, 
as  concerning  his  services  issuing  out  of  some  tenement. 
*In  this  manner  are  purchased  seigniories,  which  some- 
times by  forfeiture  or  default  of  blood  fall  into  demesne. 
But  in  order  that  a  tenant  may  be  attorned  without 
his  consent,  it  will  be  necessary  to  have  the  aid  of  our 
court  by  levying  a  fine. 

2.  There  is  likewise  another  kind  of  purchase,  which 
is  made  of  an  annual  fee,  in  money  or  other  things,  in 
fee  or  for  term  of  life,  given  in  reward  of  service  or  for 
exchange  of  land,  or  other  thing,  and  for  which  the 
donor  may  charge  his  tenement  with  distress  if  any 
part  thereof  be  in  arrear  to  the  purchaser,  either  by 
recognizance  in  our  court  or  by  charter.  The  charter 
may  be  in  the  following  form. 

3.  '  To  all  who  shall  see  or  hear  this  letter  I,  J.  of  B., 
send  greeting.  Know  that  I  have  given  to  P.  for  the 
service  which  he  has  done  me  (or  for  some  other  thing 
certain)  £100  of  annual  rent  in  N.  and  in  S.,  so  that  out 
of  the  manors  aforesaid  he  may  take  the  aforesaid  rent 
from  year  to  year  on  the  day  of  St.  Michael,  in  whose- 


I,  *106  b.]    OF  PURCHASE  OF  RENT.  221 

soever  hands  the  manors  shall  come,  during  the  life  of 
the  same  P.  (or  in  fee  to  him  his  heirs  and  assigns),  and 
whereof  in  the  name  of  seisin  I  have  delivered  to  him 
100*.  beforehand,  and  to  the  intent  that  the  aforesaid 
fee  may  not  be  detained  from  him,  and  that  this  grant 
may  be  firm,  I  bind  the  aforesaid  manors  to  the  distress 
of  the  same  P.  (or  to  P.  his  heirs  and  assigns),  so  that 
they  may  *distrainin  whosesoever  hands  they  come,  so 
far  forth  as  I  myself  might  do,  until  they  are  fully  paid 
the  principal  fee  and  their  damages.  And  I  and  my 
heirs  will  warrant  the  aforesaid  fee  to  the  aforesaid  P. 
his  heirs  and  assigns  for  ever.'  As  to  the  date  and  the 
witnesses,  let  that  be  done  which  is  mentioned  in  the 
chapter  concerning  Charters. 

4.  Therefore,  if  there  be  any  arrear  of  the  annuity 
due  to  such  a  purchaser,  he  may  distrain  the  tenements 
charged,  and  if  he  be  disturbed  therein,  he  shall  have 
remedy  by  this  assise,  provided  the  writings  are  proved 
to  be  genuine. 


222  BRITTOK.  [I,  *lor. 


CHAPTEK  XI. 
Of  Disseisins. 

1.  Petty  assise  is  the  recognizance  of  twelve  jurors 
concerning  the  plaintiff's  right  upon  the  possession ; 
and  it  is  called  petty  to  distinguish  it  from  the  great 
assise,  after  which  there  is  no  action  or  remedy.^ 
This  is  not  the  case  with  tlie  petty  assise  ;  for  though 
the  cause  is  lost  in  the  petty  assise,  yet  the  plaintiff 
may  recover  by  attaint,  or  by  writ  of  right,  in  respect 
of  property. 

2.  A  person  may  be  disseised  in  many  ways.  For 
one  is  properly  said  to  be  disseised  who  is  wrongfully 
ejected  out  of  any  tenement  which  he  peaceably  held, 
and  in  whose  person  the  right  of  property  in  the  fee, 
and  the  right  of  possession  of  the  freehold,  and  the 
seisin  were  united. 

*3.  All  seisins  do  not  equally  give  a  freehold  title. 
For  the  right  heir  hath  sooner  a  freehold  than  he  who 
liath  no  rigiit ;  for  the  seisin  of  every  right  heir  is  so 
tender,  that  the  mere  setting  of  his  foot  in  the  capital 

1  '  There  is  no  remedy  beyond  the  great  assise,  on  account  of 
tlie  solemn  dignity  of  the  knights,  who  are  as  it  were  tlie  king's 
companions  :  for  a  knight  cannot  be  attainted  of  falsehood  but 
by  battle  and  by  his  peers.  Therefore  it  is  not  to  be  supposed 
that  so  noble  persons  will  perjure  themselves  for  any  considera- 
tion (a  nul  foer.)'    Note  in  MS.  N. 


I,  107  d.]  OF  DISSEISINS.  223 

mansion  of  liis  inheritance  is  suiRcient  for  title  of  free- 
hold, if  it  is  done  in  the  name  of  seisin,  and  while  the 
inheritance  is  vacant,  no  other  person  being  found  in 
seisin.  And  the  reason  is  on  account  of  the  conjunc- 
tion of  the  right  of  possession  with  the  right  of  prop- 
erty. So  likewise  of  every  seisin  taken  to  his  use. 
Wherefore  if  such  heirs  so  seised  by  themselves,  or  by 
their  procurators  or  bailiffs  or  others  who  may  be  put 
in  seisin  in  their  name,  be  ejected  by  any  but  ourselves, 
we  will  that,  of  what  age  soever  they  be,  they  shall 
recover  by  this  assise.  Also,  if  they  be  under  age,  and 
have  been  in  their  lords'  ward  and  admitted  as  heirs, 
and  their  lord  afterwards  refuse  to  acknowledge  them 
as  heirs,  such  heirs  shall  be  forthwith  aided  by  this 
assise,  whether  the  lord  or  any  other  be  found  tenant. 

4.  And  if  any  lord  after  the  death  of  his  tenant  finds 
his  fee  vacant,  and  holds  possession  thereof,  claiminga 
freehold  in  the  fee  for  default  of  appearance  of  the  heir, 
*and  is  ejected  by  one  who  is  not  heir,  he  sball  be  aided 
to  recover  the  possession  by  this  assise,  saving  to  every 
one  his  right. 

5.  Where  any  younger  brother  finding  the  inheri- 
tance of  his  ancestor  vacant,  enters  and  sets  himself  up 
for  heir,  claiming  fee  and  freehold,  if  he  be  ejected  by 
the  right  heir  or  another  out  of  his  peaceable  seisin, 
the  disseisee  shall  recover  his  estate  by  this  assise. 
For  the  right  of  proximit}'^,  or  which  of  them  is  the 
nearest  heir,  cannot  be  tried  but  by  writ  of  right  only, 
unless  by  consent  of  the  tenant.  But  if  the  right  heir 
ejects  his  bastard  or  younger  brother,  or  other  person,. 


224  BRIXTON.  [I,  *108 

Avithin  fifteen  days  after  their  entry,  the  ejected  shall 
never  recover  by  this  assise.  But  if  they  have  had 
peaceable  seisin  so  long  that  they  might  have  aliened 
the  inheritance  to  a  stranger,  and  such  purchaser  might 
have  enjoyed  his  seisin  so  that  an  action  would  lie  to 
recover  his  seisin  by  this  assise  if  he  was  ejected, — in- 
asmuch as  the  same  time,  and  less,  suffices  to  constitute 
a  right  in  the  person  of  one  privy  in  blood  to  the  right 
heir,  than  in  a  stranger, — it  is  reasonable  that  those 
who  might  claim  by  the  same  descent  in  an  assise  of 
Mortdancester,  should,  if  they  are  ejected  from  their 
seisin,  recover  by  this  assise  against  the  right  heirs  and 
all  others,  as  well  as  a  stranger  enfeoffed  in  the  *mean- 
time  by  such  intruders  might  do,  if  he  were  ejected 
from  his  purchase. 

G.  He,  in  whose  person  were  united  the  right  of 
possession  of  the  freehold  and  the  seisin  from  Avhich 
he  was  ejected,  is  considered  as  disseised,  although  the 
fee  bo  all  the  while  in  the  person  of  the  desseisor  or  in 
another.  And  not  onl}'^  is  he  disseised  who  is  ejected 
from  his  freehold  in  his  proper  person,  but  he  is  disseised 
if  his  wife,  bailiff,  attorney,  or  farmer,  be  ejected,  al- 
though he  is  not  himself  present.  Moreover,  not  only 
lie  who  is  ejected  from  his  freehold  is  disseised,  but  he 
also  who,  at  what  time  he  returns  from  market,  or 
])ilgrimage,  or  elsewhere,  finds  any  one  else  in  hisfree- 
liold  who  will  not  suffer  him  to  enter  the  tenement,  or 
at  least  keeps  himself  therein  together  with  the  right 
owner,  claiming  a  freehold  in  the  demesne  of  the  true 
ownei".     A  person  is  likewise  disseised  from  the  time 


I,  108  5.]  OF  DISSEISINS.  225 

that  he  or  his  family  is  disturbed  in  the  enjoyment  of 
his  peaceable  seisin  by  another,  who  by  such  disturb- 
ances claims  freehold  therein,  either  as  to  the  whole 
or  part,  and  either  in  the  principal  or  in  the  appurte- 
nances. 

T.  So  likewise  is  he  disseised,  who  is  disturbed  in 
such  a  manner  that  he  cannot  freely  enter  into  his  fee 
and  distrain  for  arrears  of  services  due  from  the  tene- 
ment, of  which  services  the  lord  has  been  seised.  Like- 
wise if  the  tenant  has  impeded  his  distress  *by  a  wall, 
-tlitch,  or  hedge,  or  by  driving  his  cattle  into  another's 
fee  ;  or  if  no  distress  is  found  therein,  or  any  other 
act  has  been  done,  so  that  the  lord  cannot  go  in  and 
out  at  his  pleasure  as  he  was  wont  to  do.  Also  he  is 
<lisseised  to  whom  reasonable  distress  is  refused,  or 
rescued  by  the  tenant,  where  the  lord  has  been  seised 
thereof.  Also  if  the  tenant  wrongfully  replevies  the 
distress  made  upon  him  by  the  lord  for  arrears  of 
services,  whereof  the  lord  has  been  seised. 

8.  So  likewise  is  he  disseised  who  is  ejected  from  his 
freehold  by  a  judgment  which  is  not  binding,  as  by  a 
judgment  given  without  our  original  writ. 

9.  Some  persons  also  are  disseised  who  hold  for 
terms  of  their  own  life  or  of  the  lives  of  those  who 
had  only  a  freehold.  But  if  he  in  whom  both  rights 
rest  leases  his  land  for  the  term  of  the  lessor's  life,  no 
freehold  thereby  accrues  to  the  purchaser,  although 
the  lease  of  the  land  be  made  to  the  purchaser  and  his 
heirs  to  have  and  to  hold  for  all  the  life  of  the  donor; 
and  therefore  if  the  purchaser  or  his  heirs  should  be 

15 


226  BRIXTON.  [I,  *109, 

ejected,  this  assise  will  not  avail  them.  Those  also 
are  disseised  who  are  ejected  from  tenements  which 
they  held  by  judgment  of  our  court,  or  without  judg- 
ment, until  such  or  such  a  thing  be  done,  or  for  a 
qualified  term,  as  in  gage  or  by  conditional  feoflFraents. 
*10.  Disseisin  is  not  only  made  of  lands  and  tene- 
ments, but  also  of  rents,  estovers,  and  all  kinds  of  an- 
nual profits  due  for  the  term  of  the  life  of  the  disseisee, 
where  view  can  be  given  of  any  certain  place  from 
whence  these  profits  are  to  arise. 

11,  A  person  is  also  disseised  at  what  time  another 
disturbs  and  deforces  him  of  his  freehold,  and  does  not 
deliver  it  up  after  our  command  to  deliver  it.  One  is 
likewise  disseised  when  the  seisin  of  his  inheritance  is 
denied  him  by  the  chief  lord  his  guardian,  to  whom  he 
has  done  homage,  and  in  whose  ward  he  has  been  for 
the  same  inheritance,  so  as  he  can  prove  the  same, 
although  he  was  in  ward  but  a  very  short  time. 

12.  Althoug'h  there  be  several  disseisors,  it  is  suf- 
ficient to  name  two,  or  one,  where  the  same  person  is 
found  to  be  both  disseisor  and  tenant.  For  one  dis- 
seisor and  one  tenant  at  least  must  alwaj'^s  be  named  in 
the  plaint.  And  if  several  disseisors  are  named  as 
having  done  the  wrong  and  force,  it  does  not  hurt. 
But  in  case  of  disseisin  by  a  judgment  which  is  not 
binding,  where  a  person  is  ejected  from  seisin  of  his 
freehold  by  judgment  in  a  freeman's  court,  or  in  the 
county  or  hundred,  or  in  any  franchise  without  our 
writ,  the  names  of  the  suitors,  together  with  those  of 
the  bailiff  and  tenant,  must  be  mentioned  ;  but  if  in  our 


I,  *109  h.,  *110.]     OF  DISSEISINS.  227 

*court  before  our  Justices,  then  it  will  be  proper  to  men- 
tion the  name  of  the  Justice  who  pronounced  the  judg- 
ment, and  the  name  of  the  sheriff,  and  of  the  bailiff,  and 
of  the  tenants. 

13.  A  disseisin  is  also  done  by  those  who  convey  a 
freehold  to  others,  where  they  themselves  have  none ; 
and  in  such  case  the  donor  as  w^ell  as  the  disseisor 
should  be  named.  But  in  all  disseisins  if  the  writ  of 
novel  disseisin  falls  by  the  death  of  the  disseisor,  or  of 
the  tenant,  a  writ  of  entry  in  the  second  degree  takes 
its  place. 

14.  There  are  several  nusances,  which  may  be  pros- 
ecuted by  this  assise,  and  yet  not  to  recover  a  freehold, 
but  to  remove  wrongful  nusances,  as  if  a  watercourse 
or  way  is  wrongfully  turned  or  enlarged  or  straightened, 
or  a  ditch,  house,  wall,  hedge,  or  market  Avrongfully 
set  up,  or  a  pond  wrongfully  raised  or  lowered  to  the 
annoyance  of  his  neighbour.  Some  nusances  however 
are  determinable  by  sheriffs  in  county  courts  and  not 
by  assises,  as  in  the  case  of  encroachments  of  curtilage 
upon  common  weirs,  watering-places  for  cattle,  erection 
of  gates,  folds,  cowhouses,  windmills,  ovens,  or  sheep- 
cotes. 

15.  There  is  another  kind  of  disseisin,  as  of  a  fishery. 
For  none  can  have  a  warren  in  other's  demesnes,  ex- 
cept by  special  deed  ;  but  the  fishery  belongs  to  him 
whose  land  adjoins  the  river  on  both  sides.  And  if  it 
adjoins  on  one  side  only,  then  the  fishery  is  his  as  far 
as  the  line  of  raid-stream,  unless  it  be  a  common  fish- 
erv.     ^Therefore  where  a  stransrer  disturbs  such  an 


228  BRITTON.  [I,  *110  h. 

owner  for  fishing  in  right  of  his  soil,  claiming  a  free- 
hold in  the  fishery,  he  commits  manifest  disseisin  of 
the  owner  of  the  soil,  if  he  has  had  seisin  of  the  fishery. 
The  like  of  a  woman  to  whom  such  a  fishery  has  been 
assigned  in  right  of  dower.  Disseisin  may  also  be  made 
of  corrodies,  and  of  bailiwicks,  and  of  many  other 
profits,  as  is  said  in  our  statutes. 

16.  Assise  of  disseisin  will  also  lie  in  some  cases  for 
a  husband  against  his  wife,  when  after  having  left  her 
husband  for  adultery,  she  attempts  without  his  leave, 
and  without  any  award  of  court  Christian,  to  keep  her- 
self by  force  in  her  husband's  freehold  or  in  her  own, 
whereas  she  has  forfeited  everything  for  their  two 
lives  by  her  offence.  So  in  all  cases  where  the  Avife  dis- 
seises her  husband. 

17.  This  assise  lies  also  for  the  lord  of  any  fee  against 
all  persons  wrongfully  distraining  his  tenants,  and  also 
against  the  tenants  jointly  with  the  wrongful  dis- 
trainers, if  the  tenants  subject  themselves  to  any  wrong- 
ful services,  to  impose  on  the  fee  a  greater  service  than 
it  ought  to  bear,  on  account  of  the  disherison  and  dam- 
age which  may  accrue  to  the  lord,  if  the  fee  should  by 
any  means  fall  into  his  hands  by  escheat. 

18.  If  any  one  denies  his  service  and  disavows  hold- 
ing of  his  lord,  *in  such  cases  distress  does  not  lie,  ex- 
cept where  distraining  and  disavowing  are  compatible, 
but  this  assise  takes  place,  as  in  the  case  where  the 
tenant  replevies  reasonable  distress  out  of  the  hands  of 
the  lord,  by  which  contest  he  makes  himself  a  peer  to 
his  lord,  and  so  far  denies  the  seigniory,  although  he 


f,  nil.]  OF  DISSEISINS.  229 

does    it  tacitly  ;   and   by  reason  of    this  assertion  of 
equality  this  assise  holds  in  both  cases. 

19.  This  assise  lies  also  in  the  person  of  a  villain  and 
his  free  wife  against  the  lord  of  the  villain,  as  in  case 
virhere  a  villain,  holding  nothing  in  villenage,  marries 
a  free  woman,  having  a  free  tenement  where  the  vil- 
lain and  his  wife  dwell,  if  the  lord  eject  them  after  the 
year  and  day,  they  shall  recover  by  this  assise  although 
the  lord  can  prove  him  his  villain  by  suit  of  his  kin- 
dred. The  son  likewise  of  a  villain  ejected  from  the 
purchase  of  his  father,  who  died  in  a  free  estate,  may 
recover  by  this  assise  as  well  against  his  lord  as  against 
a  stranger. 

20.  This  assise  also  takes  place  in  favour  of  those 
who  are  ejected  by  false  warranties,  as  in  the  following 
and  like  cases.  John  brings  an  assise  of  Mortdan- 
cester  wrongfully  against  Peter.  Peter  comes  into 
court  and  vouches  to  warrant  Theobald.  Theobald 
makes  default,  whereupon  the  assise  is  thus  awarded 
for  his  default,  that  although  he  come  another  day, 
yet  he  shall  not  be  heard  to  allege  any  cause  where- 
fore the  assise  should  remain  to  be  taken.  ^Suppose 
that  for  some  cause  another  day  is  given,  as  for  default 
of  jurors  or  for  any  other  reason,  if  Theobald  comes  at 
the  second  day,  and  says  thus,  I  warrant  to  Peter,  and 
surrender  the  tenement  to  John,  if  the  Justices  are  so 
unadvised  as  to  admit  such  warranty,  Peter  shall  re- 
cover by  this  assise.  And  the  Justices  and  the  sheriff 
or  bailiff,  who  delivered  seisin  of  the  tenement,  will  be 
disseisors  as  well  as  the  tenant ;  for  they  had  no  war- 


230  BRITTOK  [I,  *111  I. 

rant  to  take  cognizance  of  anything  concerning  Theo- 
bald, inasmuch  as  he  had  then  no  day.  And  if  Theo- 
bald has  given  land  in  exchange  to  John,  he  shall 
never  recover  it,  because  he  did  it  of  his  own  accord 
without  another  judgment.  For  no  one  vouches  an- 
other to  warrant  in  order  to  be  disseised  by  him,  but 
to  be  defended  by  him  in  his  possession. 

21.  If  any  man  takes  seisin  of  a  tenement  under  col- 
our of  feoffment,  but  is  not  put  into  seisin  b}''  the  feoflfor, 
if  the  feoffee  be  presently  ejected  by  the  feoffor,  he 
shall  not  recover  by  this  assise.  But  if  two  or  more 
thrust  themselves  into  seisin  under  colour  of  feoffment, 
and  a  contest  or  dispute  arises  between  them  which 
shall  have  the  seisin  in  several,  he  whose  seisin  is  rati- 
fied by  the  donor  shall  have  the  best  right  to  recover. 
And  if  there  is  a  contest  between  feoffees  who  have  no 
right  beyond  a  naked  colour  of  feoffment,  this  assise 
shall  assist  the  one  who  has  been  ejected  from  peace- 
able seisin,  against  the  other  who  had  no  right  to 
eject  him,  by  reason  of  the  possessory  right  which  he 
had,  whereas  the  disseisor  had  no  sort  of  right  to 
eject  him.  *And  if  two  or  more  contend  about  a  tene- 
ment to  which  neither  of  them  has  any  right,  as  if 
both  of  them  are  bastards,  he  who  was  fii'st  in  seisin 
may  avail  himself  of  this  assise,  and  shall  retain  the 
seisin,  until  it  is  recovered  by  him  who  has  a  better 
right. 

22.  And  as  one  may  be  disseised  of  his  own  proper 
tenement  which  he  held  in  demesne  and  in  sevei-alty, 
so  several   persons   may  be   disseised    of   a   tenement 


I,  m2.]  OF  DISSEISINS.  231 

■which  they  hold  jointly,  as  in  the  case  of  a  husband 
iind  his  wife,  neither  of  whom  shall  be  aided  b}^  this 
assise  or  heard  without  the  other,  except  in  the  case 
of  adultery,  where  the  wife  has  eloped  from  her  hus- 
band. It  is  the  same  with  respect  to  boundaries  and 
landmarks  between  neighbours  whereof  both  are  dis- 
seised ;  for  then  neither  shall  be  assisted  by  bringing 
this  assise  separately  by  himself,  since  such  boundaries 
Avere  never  held  in  severalty ;  but  if  such  boundaries 
are  ploughed  up,  moved,  or  taken  away,  by  any  stranger 
appropriating  the  soil  as  his  own  freehold,  the  two 
neighbours  or  more  according  as  the  boundaries  were 
held  must  be  joined  in  the  plaint.  For  as  a  river,  un- 
less it  be  a  common  river  dividing  counties  or  hundreds, 
belongs,  as  far  as  the  line  of  raid-water,  to  him  whose 
soil  joins  the  water,  so  it  is  with  boundaries  of  land, 
except  in  case  of  a  common  way,  which  none  may  turn 
or  narrow,  and  other  such  like  boundaries.  *And  if  a 
boundary  between  neighbours  be  plouglied  up  by  one 
of  the  neighbours,  then  this  assise  lies  to  have  the 
boundaries  restored  to  their  proper  state.  Running 
water  however  is  no  longer  a  boundary  than  whilst  it 
continues  its  proper  course ;  but  as  soon  as  it  changes 
its  channel  in  its  course,  it  shall  no  longer  be  a  bound- 
ary between  neighbours. 

23.  Parceners  and  others  holding  in  common,  so  that 
none  can  distinguish  his  several,  may  suffer  a  common 
<lisseisin  ;  or,  although  there  has  been  at  one  time  a 
severalty,  if  b}'-  the  common  consent  of  the  parceners 
the  tenement  has  been  afterwards  assiffned  to  some 


232  BRITTON.  [I,  *112  h, 

comraon  use,  they  may  avail  themselves  of  this  assise 
if  they  be  afterwards  ejected  or  disturbed.  And  if  one 
of  the  parceners  be  ejected  or  disturbed  of  his  seisin, 
by  one  or  more  of  his  co-parceners,  the  disseisee  may 
have  recourse  to  this  assise  by  a  several  plaint  against 
his  co-parceners,  and  shall  recover  ;  but  not  to  hold  in 
severalty  but  in  common,  as  he  did  before.  *And  if 
two  or  more  parceners  are  disseised  by  the  other  par- 
ceners, each  parcener  shall  have  his  several  assise,  and 
they  shall  recover  to  hold  in  common.  And  like  judg- 
ment shall  be  given  in  all  other  possessory  writs  be- 
tween parceners  before  the  join-tenancy  is  severed. 
But  when  their  tenements  have  been  severed,  so  that 
each  knows  his  own  part,  and  one  of  the  parceners  is 
afterward  disseised  by  the  other,  then  this  assise  lies 
between  them  as  between  strangers  holding  in  severalty ; 
and  one  or  more  parceners  disseised  shall  have  the  like 
judgment  against  their  co-parceners,  disseisors,  as 
against  strangers.  Where  there  are  several  disseisins, 
several  assises  shall  be  instituted,  and  each  disseisor, 
whether  parcener  or  other,  shall  answer  for  his  own 
Avrong.  What  we  have  said  of  parceners  holding- 
jointly  as  one  heir,  by  reason  of  the  unity  of  right  of 
them  all,  shall  be  equally  understood  of  neighbours, 
who  though  strangers  in  blood,  jointly  hold  as  par- 
ceners, by  feoffment,  and  in  like  cases. 


I,  *112  b.]      ASSISE  DOES  NOT  LIE.  23a 


CHAPTER  XII. 

Where  an  assise  does  not  lie. 

1.  All  persons  have  not  equally  a  right  of  action  to 
recover  by  this  assise.  For  this  remedy  shall  not  be 
granted  to  any  person  ejected  from  a  possession  which 
he  held  in  another's  name,  as  bailiff,  guardian,  or 
attorney,  or  to  a  farmer  holding  for  term  of  years,  or 
to  those  who  hold  any  demesnes  by  villain  customs 
without  title  of  gift  or  feoffment,^  or  to  persons  in 
religion  or  others  who  shall  have  purchased  land  of 
another's  fee  in  mortmain,  if  they  be  ejected  by  the 
lords  of  the  fee,  according  to  the  ordinance  of  our 
statute.     A  villain,  of  whom  his  lord  has  been  seised 

1 '  Note,  that  he  who  holds  ancient  demesnes  without  charter, 
if  he  enfeoff  a  stranger,  is  as  a  disseisor.  And  the  proof  is  this. 
He  who  makes  a  higher  estate  to  another  than  he  himself  had, 
as  he  who  makes  frank  tenement,  where  he  hath  none  himself,  is 
a  disseisor.  And  the  tenant  in  ancient  demesne  hath  not  frank 
tenement,  for  he  who  hath  frank  tenement  can  recover  by 
assise,  which  the  sokeman  cannot  do.  And  the  loi'd  of  the 
manor  hath  the  freehold,  wherefore  by  such  alienation  he  is  dis- 
seised. And  as  soon  as  the  sokeman  withholds  his  services,  the 
lord  may  take  the  tenement  in  his  hand,  and  if  he  were  tenant, 
then  the  lord  would  need  to  recover  by  way  of  distress  or  by 
cessavit.'  (Note  in  MS.  N.)  See  Judge  Blackstone's  argument  as 
to  the  status  of  a  tenant  in  ancient  demesne.  Considerations  on 
Copyholders,  Blackstone's  Tracts,  p.  199-237.  See  also  Bracton^ 
165  6,  166,  168. 


234  BRITTON.  [I,  *113. 

Avithin  a  year  and  day  as  his  villain,  can  never  recover 
against  his  lord  ;  *nor  a  freeman  who  has  in  our  court 
acknowledged  himself  to  be  the  villain  of  the  disseisor. 
Nor  can  an  intruder  ever  recover  if  he  be  presently 
ejected  by  the  true  heir,  within  the  year  and  day.^ 

2.  Nor  shall  he  recover  by  this  assise,  from  whose 
soil  buildings  are  removed,  which  were  erected  thereon 
through  the  ignorance  of  another  and  afterwards  taken 
away  as  soon  as  the  builder  perceived  his  folly.  But 
if  the  owner  of  the  soil  shall  carry  to  the  builder  our 
prohibition  against  his  removing  them,  or  if  he  built 
them  contrary  to  the  forbiddance  of  the  owner  of  the 
soil,  or  in  ill  faith,  and  not  through  ignorance,  or 
where  anything  is  sown  or  planted  in  another's  soil 
through  ignorance,  and  that  plant  remain  till  it  has 
taken  root,  if  the  builder  or  planter  afterwards  carry 
it  away  without  judgment,  the  owner  of  the  soil  shall 
recover  damages  as  much  as  if  they  had  been  of  his 
own  building  or  planting. 

3.  Neither  shall  those  persons  ever  recover  against 
the  true  heirs  by  this  assise,  who  shall  be  ejected  from 

1 '  To  that  he  saith,  that  an  intruder  shall  not  recover  if  he  be 
ejected  within  the  year,  I  do  not  agree  (ne  m"i  acorde  je  mie) ; 
because  it  seenieth  tliat  he  should  not  be  in  a  worse  condition 
than  the  disseisor  would  be.'  (Note  in  MS.  N.)  In  Bracton  and 
Fleta  the  time  is  not  even  limited  to  a  year  ;  non  competit 
[assisa]  intrusori,  nisi  tempus  habuerit  longum  et  pacificum. 
■quod  sufficere  possit  pro  titulo  (Brae.  168).  A  comparison  of 
those  statements  shows  the  rapidly  growing  inclination  on  the 
part  of  the  king's  court  to  repress  the  practice  of  recovering 
possession  witliout  judgment. 


I,  *113  J.]      ASSISE  DOES  NOT  LIE.  235 

tenements  which  they  claim  to  hold  by  the  law  of  Eng- 
land presently  after  proof  made  that  the  children  in 
whose  name  they  must  hold  were  bastards,  or  such  as 
cannot  be  heirs,  or  where  they  had  no  issue  by  *their 
wives,  or  were  not  the  first  husbands,  even  if  they  had 
issue.* 

4.  Purchasers  with  whom  the  donors  have  all  along 
continued  in  seisin  until  their  death,  shall  not  recover 
if  such  purchasers  are  presently  ejected  by  the  right 
heirs.  Nor  can  a  husband  recover  his  wife's  freehold 
without  the  wife,  nor  the  wife  without  the  husband  ; 
nor  the  husband  alone  where  the  wife  is  jointly  en- 
feoffed of  the  freehold  with  the  husband.  Nor  shall 
those  ever  recover  by  this  assise  who  have  been  ejected 
by  their  own  consent,  where  such  consent  can  be  shown 
and  verified  by  deed  covenant  or  by  the  country.  Nor 
shall  he  recover  by  this  assise  who  is  prevented  from 
using  his  seisin  by  reason  of  waste  committed  by 
the  tenant,  until  satisfaction  be  made  for  the  waste  and 

1  The  opinion,  that  tenancy  by  the  curtesy  is  a  privilege  of  a 
first  husband  only,  is  supported  by  Fleta,  but  not  by  Bracton. 
(See  the  passages  referred  to  above.)  The  contrary  appears  to 
be  implied  by  the  statute  De  donis  (13  Ed.  I.),  which  enacted, 
that  for  the  future  tlie  second  husband  should  not  have  any 
estate  per  legem  Anrjlice  in  a  tenement  of  which  his  wife  had  been 
enfeoffed  in  frank-marriage  with  her  first  husband.  And  in  a 
case  in  the  Cornish  Iter,  30  Edw.  I.,  an  estate  by  the  curtesy 
was  allowed  to  the  second  husband,  of  land  which  had  been  given 
in  frank-marriage  with  the  first  before  the  statute  De  donis, 
upon  the  ground  of  this  implication.  (Year-book,  30  Edw.  I., 
p.  126.) 


236  BTtlTTON.  [I,  *1U. 

destruction.^  Nor  shall  the  lord  recover  by  this  assise^ 
when  he  complains  that  the  tenant  has  disseised  him, 
before  he  has  distrained  for  his  arrears  of  service,  or 
until  he  has  been  in  some  way  prevented  from  distrain- 
ing. 

5.  Nor  Avill  this  assise  assist  one  who  has  before  with- 
drawn himself  in  the  same  action  of  assise  from  his 
writ  against  the  same  person,  if  it  can  be  proved  by  rec 
ord  of  the  rolls  of  the  Justices.  Now  a  wife  ejected 
from  her  dower,  of  whom  it  is  proved  in  court  Chris- 
tian that  she  was  never  joined  in  lawful  matrimony  to 
tlie  husband  by  whose  assignment  she  claims  to  be  en- 
dowed, if  she  be  ejected  by  the  right  heir.  *N'or  those 
who  by  quitclaim,  exchange,  or  in  some  other  manner, 
have  made  accord  of  the  wrong  done  them.  Nor  one 
Avho  by  another  writ  of  earlier  date  has  brought  his 
plaint  for  the  same  assise,  or  where  an  action  is  pend- 
ing for  the  same  tenement  between  the  same  persons 
by  a  writ  of  higher  nature. 

6,  Nor  can  he  avail  himself  of  this  assise,  who  was 
enfeoffed  upon  an  express  condition  specified  in  writ- 
ing, or  a  tacit  condition  Avhich  can  be  proved  by  the 
country,  if  he  be  ejected  by  the  feoffor  after  he  has 
failed  to  perform  the  covenant.     Thus,  if  John  gave 

1  It  appears  to  follow  from  this  and  the  parallel  passages  in 
Bracton  and  Fleta,  that  when  waste  had  been  committed  by  the 
freeholder,  the  reversioner  might  enter  without  judgment  upon 
the  tenement,  and  hold  it  until  satisfaction  had  been  made  for 
the  waste  ;  and  further  (according  to  Bracton) ,  until  security 
had  been  given  against  further  destructiou. 


J,nUl.]      ASSISE  DOES  NOT  LIE.  237 

land  to  Peter  upon  condition  that  Peter  took  to  wife 
one  of  the  kindred  of  John,  or  some  other,  or  the  re- 
verse; if  the  feoffee  changes  his  mind  and  takes  another 
wife,  and  the  feoffor  afterwards  ejects  him  from  the 
tenement,  this  assise  will  not  avail  the  disseisee. 

7.  Nor  will  this  assise  avail  him  who  shall  have  been 
ejected  pursuant  to  a  judgment  of  our  court,  as  in  the 
following  and  similar  cases.  A  younger  brother,  by 
default  of  the  next  heir,  recovers  an  inheritance  by 
award  of  our  court  by  judgment  in  this  form,  that  if 
the  right  heir  appear,  he  may  presently'  after  his  ap- 
pearance eject  whomsoever  he  may  find  tenant,  whether 
it  be  he  who  so  recovers  upon  the  decease  of  his  ancestor 
or  a  stranger  feoffee ;  and  in  that  case  if  the  heir  is  not 
able  to  eject  the  tenant,  yet,  *where  he  is  known  to  be 
the  next  heir,  if  he  can  prove  the  setting  of  his  foot  in 
the  house  in  the  name  of  seisin,  and  he  is  thrust  out,  he 
shall  be  aided  by  this  assise. 

8.  This  assise  does  not  lie  for  a  person  ejected  by  the 
chief  lord,  who  put  himself  in  seisin  of  his  fee  presently 
after  the  death  of  his  tenant,  where  some  one  w^ho 
wrongfully  pretends  to  be  the  next  heir  ejects  the  chief 
lord,  and  the  chief  lord  again  ejects  him,  once  or 
oftener  ;  and  if  such  pretended  heirs  bring  this  assise 
against  the  lord,  it  shall  avail  them  nothing,  because 
they  did  not  find  the  fee  vacant.  But  if  they  had  found 
the  fee  vacant,  and  had  entered  as  heirs,  and  had  been 
afterwards  ejected  by  the  lord,  or  any  other,  from  their 
peaceable  seisin,  in  such  case  this  assise  vrould  have 
availed  them. 


238  BRITTOK  [I,  *115. 

9.  Nor  does  this  assise  help  him  who  is  disturbed 
from  distraining  for  a  rent  not  issuing  out  of  land  ;  nor 
one  who  is  distrained  in  accordance  with  his  liability. 

10.  This  assise  does  not  take  place  in  respect  to 
churchyards,  common  ways,  walls  of  boroughs  or  cities, 
or  of  like  things  common  to  everybod\^,  because  no 
single  person  can  claim  any  property  or  severalty  in 
such  common  things ;  and  therefore  in  such  cases  the 
remedy  is  by  plaint  of  trespass. 


*CHAPTEIl  XIII. 
Of  Remedies  in  Disseisin. 

1.  The  first  remedy  in  disseisin  is  for  the  disseisee  ta 
gather  friends  and  force,  and  without  any  delay  after 
he  may  have  knowledge  of  the  disseisin  to  eject  the 
disseisors.  And  if  he  can  do  no  more,  he  should  at 
least  keep  himself  in  possession  with  the  disseisors,  and 
make  such  use  of  his  seisin  as  he  can  ;  in  this  way  the 
disseisor  will  never  gain  a  freehold  without  the  consent 
of  the  true  owner. 

2.  But  if  the  disseisors  haveTjeen  for  a  long  time  in 
peaceable  seisin  in  the  presence  of  the  disseisee,  then  it 
is  not  lawful  for  the  disseisee  to  eject  the  disseisors 
without  judgment.  In  such  case  inquiry  may  be  made, 
where  the  disseisse  was  at  the  time  of  the  disseisin  ;  ^  for 

1  The  time  allowed  for  re-ejeotrnent  is  not  very  clearly  stated 
in  the  text  ;  and  the  readings  in  several  of  the  MSS.  vary.  Tlie 
following  note  is  from  MS.  N.       Wliere  the  disseisin  is  done  in 


I,  *115J.]    OF  KEMEDIES  IN  DISSEISIN.       23^ 

if  he  was  present,  and  knowingly  suffered  tiae  disseisor 
to  enjoy  his  peaceable  seisin,  the  disseisee  has  no  such 
right  after  a  long  space  of  time  to  eject  the  disseisor, 
but  that  the  latter  may  recover  his  seisin  by  this  assise, 
with  his  damages  ;  for  in  such  case  it  may  reasonably 
be  presumed  that  the  disseisees  \vere  willing  that  the 
tenements  should  belong  to  the  disseisors  ;  inasmuch 
as  they  suffered  their  right  to  lie  so  long  dormant. 

3.  But  if  the  disseisee  was  in  a  distant  country  at 
the  time  when  the  disseisin  was  committed,  then  it  is 
proper  to  consider  and  determine  within  what  time 
his  family  might  have  reasonably  given  him  intelligence 
of  the  disseisin,  and  in  what  time  he  might  have  re- 
turned to  assemble  his  friends  and  eject  the  disseisors. 
*And  that  such  determinations  may  not  be  arbitrary, 

presence  of  the  disseisee,  the  disseisor  must  be  ejected  within 
five  days  ;  because  the  law  of  ancient  time  granted  tliat  the 
disseisee  should  go  one  day  to  the  east,  the  second  day  to  the 
west,  the  third  day  to  the  south,  and  the  fourth  day  to  the 
north,  to  seek  succour  of  his  friends  all  the  country  round.  If  he 
be  disseised  in  liis  absence,  then  if  lie  was  out  of  liis  district  in 
any  other  place  within  the  realm,  let  him  be  warned  fortliwith 
by  his  household,  and  let  his  reasonable  daj^s  of  journey  (ses 
resnables  journees)  be  allowed,  and  then  four  days.  If  beyond 
sea  in  pilgrimage,  he  shall  have  forty  days,  two  floods  and  an 
ebb,  and  fifteen  days  to  come  from  the  sea  to  his  house,  and  tlien 
four  days.  If  beyond  the  sea  of  Greece  in  simple  pilgrimage,  he 
shall  have  a  year,  and  two  floods  and  an  ebb,  and  fifteen  days, 
and  four  days.  If  beyond  the  sea  of  Greece  in  a  general  passage, 
then  let  three  years,  two  floods,  one  ebb,  fifteen  days,  and  four 
days  be  allowed.'  Tliis  statement  of  the  law  agrees  with  Brac- 
ton.     As  to  the  time  allowed  in  essoins,  see  below,  book  vi.  c.  7.. 


240  BRITTON.  [I,  *116. 

we  will  that  they  be  adjudged  according  to  the  periods 
allowed  in  essoins ;  so  that  if  the  disseisee  be  gone  in 
a  general  passage  to  the  land  of  Jerusalem,  and  after 
his  return  he  eject  the  disseisor,  or  any  other  who  may 
have  been  enfeoffed  by  the  disseisor,  it  is  lawful  for 
him  so  to  do,  whether  it  be  an  infant  within  age  or 
any  other  whom  he  find  therein,  so  as  it  be  done  within 
the  fourth  day  from  his  return  into  the  country,  three 
days  being  allowed  him  to  collect  arms,  friends,  and 
forces ;  and  although  the  person  so  ejected  brings  this 
assise  against  the  ejector,  yet  he  shall  not  recover  any 
freehold  ;  for  we  will  not  that  the  absence  of  such 
persons  be  so  prejudicial  that  they  be  in  any  way 
■damaged  thereby.  If  the  disseisee  went  on  a  simple 
pilgrimage  to  the  holy  land,  then  let  there  be  reckoned 
a  year  and  a  day,  and  one  ebb  and  flow  for  delays  at 
sea,  and  fifteen  days  for  his  journey  to  the  land,  and 
four  days  for  assembling  his  force  ;  and  if  he  has  within 
such  time  ejected  whosoever  was  found  in  his  tenement, 
the  person  ejected  shall  not  recover  the  land  by  this 
assise,  even  though  his  ancestor  died  seised  thereof. 
And  if  the  pilgrimage  of  the  disseisee  was  on  this  side 
of  the  Grecian  sea,  the  reckoning  shall  be  four  months, 
one  ebb  and  flow,  fifteen  days,  and  four  days  ;  if  in 
England,  fifteen  days.  And  if  the  disseisee  after  that 
time  eject  the  disseisors  *  without  judgment,  inasmuch 
as  they  have  been  all  that  time  or  longer  in  peaceable 
seisin  with  the  knowledge  of  the  disseisees,  the  dis- 
seisors shall  have  recovery  of  their  estate  by  this  assise ; 
for  we  will  that  all  persons  after  the  prescribed  time 


I,  *116  b.]    OF  KEMEDIES  IN  DISSEISIN.       241 

of  limitation  proceed  rather  by  judgment  than  force  ; 
and  the  first  disseisees  shall  not  be  afterwards  aided  by 
this  assise ;  for  he  who  acts  in  opposition  to  the  law 
has  no  right  to  claim  aid  of  the  law. 

4.  And  as  such  disseisors  have  after  a  certain  time 
and  terra  a  right  of  action  to  recover  against  the  dis- 
seisees by  this  assise,  so  they  have  also  before  the  time 
so  limited  a  right  of  action  to  recover  by  this  assise 
against  all  other  disseisors  having  no  right  to  eject 
them.  For  where  neither  of  two  persons  has  any  right, 
the  disseisee  has  a  greater  right  than  the  disseisor. 
And  although  the  original  disseisor  may  thus  recover 
by  judgment  of  our  court,  yet  the  true  owner  shall 
not  lose  anything  of  the  right  when  he  shall  choose  to 
bring  his  plaint.  So  also,  if  during  the  time  limited 
for  ejectment  he  cannot  recover  his  seisin  without  our 
aid,  our  writ  shall  be  granted  to  him  returnable  at  the 
•eyre  of  our  Justices,  or  we  will  assign  him  Justices  to 
hear  and  determine  the  plaint  according  to  the  case. 

5.  Where  a  woman  is  disseised,  and  afterwards  takes 
a  husband,  if  they  will  afterwards  proceed  by  this 
assise,  the  form  of  the  writ  shall  be  thus:  'John  and 
Peronel  his  wife  have  cemplained  to  us  that  Peter  has 
wrongfully  disseised  the  aforesaid  Peronel.'  *And  if 
the  husband  desires  to  purchase  a  writ  against  his  w^ife, 
then  thus :  '  John  and  Peronel  his  wife  have  com- 
plained to  us  that  Peronel  of  such  a  town  has  disseised 
the  aforesaid  Peronel '  :  so  that  the  wife  is  plaintiff 
although  she  is  disseisor ;  but  the  surname  is  altered 

before  she  is  named  as  disseisor. 
i6 


242  BRITTOK  [I,  ^11" 


CHAPTER  XIV. 

Of  Views  in  Disseisin. 

1.  If  the  person  ejected  cannot  or  ought  not  to  eject 
his  disseisor,  or  if  the  tenant  hinders  him  from  using 
his  seisin  together  with  him,  he  must  then  complain  to 
us,  and  we  will  thereupon  grant  him  our  writ  to  the 
sheriff  of  the  county  in  whose  bailiwick  the  tenement 
is  ;  which  writ  shall  contain  the  names  of  the  disseisors, 
of  the  tenants,  and  of  those  who  come  with  force  and 
aid  to  help  the  disseisors,  and  the  name  of  the  plaintiff. 
But  let  every  plaintiff  beware  of  putting  in  his  plaint 
any  who  were  not  wrongdoers,  because  for  every  one 
named  in  the  writ  who  can  acquit  himself  of  the  wrong 
the  plaintiff  shall  be  in  mercy  for  his  false  plaint. 

2.  When  any  one  has  purchased  our  writs,  and  also 
letters  from  our  Justices  to  the  sheriff  to  inform  him 
of  the  day  and  place  of  their  session  ;  the  *original  writ 
and  the  Justices'  letter  shall  be  immediately  taken  to 
the  sheriff ;  and  the  plaintiff  shall  keep  our  letters 
patent  by  him  until  the  day  of  the  plea,  and  then  he 
shall  deliver  them  up  to  the  Justices  to  be  their  war- 
rant ;  for  without  either  a  general  or  special  warrant 
they  cannot  determine  an3^thing. 

3.  In  the  next  place  it  is  the  sheriff's  duty  to  take 
pledges,  two  at  least,  distrainable  to  himself,  that  the 


I,  *117  h]        OF  VIEWS  IN  DISSEISIN.  243 

plaintiff  will  prosecute  his  plaint,  except  where  on  ac- 
count of  his  poverty  we  have  permitted  him  to  sue  his 
plaint  upon  the  pledge  of  his  promise  only  ;  and  then 
he  shall  find  no  other  security  to  the  sheriff.  And  if 
he  goes  without  our  aid,  and  is  unable  to  recover  his 
seisin,  he  may  then  obtain  our  writ,  returnable  at  our 
eyre  or  that  of  our  Justices,  or  we  will  grant  him  Jus- 
tices to  hear  and  determine  the  plaint  according  to  the 
case.  When  pledges  to  prosecute  are  found  to  the 
sheriff,  or  to  us  in  our  Chancery,  whereof  two  pledges 
are  sufficient  though  there  are  several  plaintiffs  in  one 
writ,  the  plaintiffs  are  not  to  be  required  to  find  any 
other  security,  although  the  return  is  to  be  made  in  a 
franchise. 

4.  Security  being  thus  taken  if  the  writ  require  it, 
let  two  freeholders  of  the  neighbourhood  be  im- 
mediately enjoined  to  summon  the  neighbours  to  be  at 
a  certain  day  and  place  before  our  Justices  to  make 
recognizance  upon  their  oaths,  whether  the  plaintiff 
has  been  disseised,  as  he  complains,  of  his  freehold, 
in  such  a  certain  place  or  not,  and  that  in  the  mean- 
time they  view  the  tenements  in  this  manner,  whether 
the  disseisin  be  made  of  land  or  of  rent,  of  private 
property  or  of  common ;  and  if  of  common,  whether 
common  to  everybody,  or  only  to  a  certain  number  of 
people ;  also  to  how  much  in  quantity  the  thing  whereof 
the  *plaint  is  made  amounts,  so  that  they  may  be  pre- 
pared with  a  certain  answer  when  they  shall  be  asked 
Avhether  the  plaintiff  hath  put  too  much  or  too  little 
in  his  plaint.     They  ought  also  to  see  whether  all  the 


244  BRITTOK  [I,  *118. 

tenement  is  situate  in  the  countj'^  and  in  the  vill  named 
in  the  writ  or  not.  It  is  not  the  sheriff's  or  bailiff's 
office  to  give  them  the  view,  but  the  plaintiff's,  who  is 
bound  to  inform  them  within  what  boundaries  and 
divisions  the  tenements  named  in  the  plaint  lie. 

6.  If  the  plaint  be  made  of  corrodies  or  estovers,  or 
of  the  delivery  of  corn  yearly,  or  other  provisions  or 
necessaries,  or  of  bailiwicks  or  wardenships,  or  of  the 
keepership  of  a  park,  or  the  ward  of  gates,  or  other 
kind  of  annual  office,  or  of  common  of  pasture,  turbary, 
fishery,  or  other  easements,  then  the  jurors  are  required 
to  make  view  of  the  tenement  from  whence  the  ease- 
ments or  estovers  arise,  or  at  least  of  those  tenements 
where  the  annual  necessaries  are  accustomed  to  be 
delivered  or  are  assigned  to  be  received. 
■  6.  And  if  the  plaint  be  made  of  rent,  then  the  jurors 
must  view  the  soil  from  which  the  rent  issues  ;  and  not 
only  the  soil,  but  the  thing  also  for  which  the  rent  is 
paid  ;  as  in  the  following  and  like  cases,  where  rent  is 
granted  by  one  neighbour  to  another  to  have  a  right  of 
driving  cattle  through  any  tenement,  *or  where  a  rent 
issuing  out  of  any  tenement  is  partly  or  wholly  released 
on  condition  of  having  an  easement  in  another  soil. 
For  although  the  one  party  does  not  require  the  ease- 
ment, yet  he  cannot  refuse  to  pay  the  rent,  or  prevent 
the  covenant  from  being  binding  in  relation  to  him  who 
is  willing  to  keep  it ;  and  the  contract  shall  never  be 
dissolved  but  by  common  assent  as  it  was  at  first  made ; 
and  therefore,  although  the  person  who  has  granted  a 
rent  in  fee  or  for  term  of  life  whereof  the  purchaser 


I,  *118  b.]    OF  VIEWS  IN  DISSEISIN.  245 

has  been  seised,  does  not  wish  to  have  the  driftway  or 
other  easement  in  the  soil  of  his  neighbour,  yet  if  he 
refuse  to  pay  the  rent  according  as  it  was  covenanted 
between  them,  he  to  whom  the  rent  is  due  may  distrain 
for  the  arrears  of  the  rent ;  and  if  he  cannot  find  any- 
thing to  distrain,  or  if  he  be  hindered  from  distraining, 
he  shall  recover  by  this  assise,  if  he  can  show  that 
any  soil  is  charged  with  the  rent ;  and  if  not,  it  is 
suiBcient  to  view  the  tenement  for  which  the  rent  wqs 
given. 

7.  If  the  plaint  is  made  of  a  nusance,  then  let  them 
view  the  nusance,  whether  it  be  a  wall,  ditch,  hedge, 
or  market,  or  a  pond  raised  or  lowered,  or  otherwise 
injurious ;  and  in  such  case  it  is  not  sufficient  to  view 
the  nusance  only,  but  they  must  also  view  the  tenement 
to  which  the  annoyance  is  done.  *And  in  the  preced- 
ing case  also,  if  the  disseisin  be  by  a  disturbance  of  an 
easement,  such  as  having  common  in  another's  soil,  or 
right  of  drift  or  way,  or  water  at  another's  well,  or 
other  like  easement,  it  is  sufficient  to  view  the  tenement 
subject  to  the  easement,  but  the  tenement  to  which  the 
pasture  belongs  must  likewise  be  viewed. 

8.  The  parties,  if  they  please,  may  be  present  at  the 
view,  and  challenge  the  jurors  ;  and  if  the  parties  agree 
upon  jurors,  the  names  of  those  upon  whom  they  have 
agreed  shall  be  imbreviated,  to  be  presented  to  the 
Justices  at  the  day  of  plea. 

9.  Afterwards  let  the  tenant  and  all  the  disseisors, 
or  their  bailiffs  if  they  cannot  themselves  be  found,  be 
attached,  and  required  to  find  pledges  to  be  present  at 


246  BRITTON.  [I,  *119. 

the  day  of  the  plea  to  hear  the  recognizance  of  the 
jurors  upon  the  plaint,  so  that  they  may  know  of  what 
offence  they  are  to  be  accused. 


CHAPTER  XV. 

Of  the  Proceedings  in  Assises. 

1.  When  the  Justices  are  come,  they  shall  forthwith 
receive  the  essoins,  and  afterwards  adjourn  them.  And 
if  the  plaintiff  in  this  assise  neither  appears  nor  causes 
himself  to  be  essoined,  the  writ  shall  be  immediately 
taken  out  of  the  hands  of  the  sheriff,  and  the  names  of 
the  jurors  presented  ;  and  the  plaintiff  shall  be  called, 
*And  if  he  makes  default.  Jet  him  and  liis  pledges  to 
prosecute  be  in  mercy.  Then  let  the  tenant  or  his 
bailiff  and  the  rest  of  the  disseisors  be  demanded,  and 
if  they  make  default,  or  cause  themselves  to  be  essoined 
(since  in  this  assise  no  essoin  avails  them,)  and  it  be 
proved  by  the  sheriff  that  they  were  attached  by 
pledges,  then  their  pledges  shall  be  in  mercy,  because 
they  have  not  produced  them  in  court  according  to 
their  engagement.  Afterwards  let  the  jurors  of  the 
assise,  according  to  the  panel,  be  required  to  answer  to 
their  names ;  and  let  such  as  do  not  appear  according 
as  they  have  been  summoned  be  in  our  mercy. 

2.  If  the  plaintiff  appears,  or  causes  himself  to  be 
essoined,  and  neither  the  tenant,  nor  his  bailiff,  nor  his 
attorney,  is  present,  the  pledges  as  before  mentioned 
shall  be  immediately  amerced,  and  by  way  of  punish- 


X*119J.]    PROCEEDINGS  IN  ASSIZES.  247 

ment  for  the  default  of  the  parties  it  shall  be  awarded 
that  they  be  not  afterwards  allowed  to  allege  any 
reason  for  staying  the  assise,  and  that  the  assise  be 
taken  by  their  default. 

3.  And  it  should  be  known  that  in  this  and  in  no 
other  assise  every  disseisor  may  answer  either  in  person 
•or  by  attorney,  or  by  bailiff.  Yet  they  have  not  all  an 
equal  power ;  for  a  bailiff  cannot  do  all  that  his  lord 
•can.  For  a  bailiff  cannot  acknowledge  or  grant  that 
the  disseisin  was  committed  by  his  lord,  so  as  to  prevent 
the  necessity  of  taking  the  recognizance,  as  the  dis- 
seisor might  himself  do,  if  present.  ^Moreover  the  bailiff 
oannot  make  any  accord  or  partition,  nor  put  the  right 
of  his  lord  into  hotchpot,  whereby  the  lord  might  lose 
any  freehold  without  the  recognizance  of  the  assise. 
Yet  the  bailiff  may,  as  well  as  his  master,  allege  any 
objection,  wherefore  the  assise  ought  not  to  pass,  or  for 
the  purpose  of  barring  the  assise  b\'  dilatory  or  per- 
emptory exceptions,  as  by  an  exception,  against  the 
judge,  or  the  plaintiff,  or  the  jurors,  or  against  the  writ, 
and  by  all  other  exceptions  and  replications. 

4.  An  attorney  may  do  all  that  his  lord  can,  except 
make  accord,  for  as  soon  as  the  proceeding  in  court  is 
■ended,  the  power  of  the  attorney  ceases,  and  in  making 
the  accord  another  proceeding  is  begun,  Avhich  was  not 
before  in  court,  ^vhen  he  w^as  appointed  attorney  only 
in  the  proceeding  then  in  court.  This  however  must 
be  understood  of  special,  not  of  general  attorneys. 
For  a  general  attorney  can  do  as  much  as  his  client 
from  the  commencement  to  the  end  of  the  suit. 


248  BKITTOK  [I,  *120. 

5.  When  both  the  plaintiff  and  the  defendants  are  in 
court,  if  the  plaintiff  declares  that  he  will  not  further 
prosecute  his  Avrit,  in  whatever  suit  this  may  occur,  he 
shall  not  afterwards  resort  to  another  like  writ,  *but 
both  he  and  his  pledges  to  prosecute  shall  remain  in  our 
mercy.  And  if  he  withdraws  himself  from  the  action, 
he  shall  be  barred  of  his  action  for  ever ;  but  if  he  has 
leave  to  seek  a  better  writ,  or  if  the  writ  be  abated  for 
error  or  for  other  fault,  and  likewise  if  the  plea  be 
opened,  and  in  the  course  of  pleading  the  writ  be  found 
defective,  although  the  plaintiff  in  such  case  say  that 
he  will  not  further  prosecute  that  writ,  yet  he  shall  not 
thereby  be  barred  from  resorting  to  a  better  writ  of 
the  like  kind,  because  no  proceeding  is  as  yet  com- 
menced upon  the  action,  but  the  whole  is  to  the  writ, 
whereby  the  action  remains  entire.  But  if  any  one 
withdraw  himself  from  his  writ  after  the  action  is 
opened,  he  shall  never  resort  to  the  like  writ  against 
the  same  persons  for  the  same  tenement,  but  the  Avrit 
shall  be  liable  to  abate,  if  the  fact  be  averred  by  ex- 
ception. But  if  upon  replication  it  can  be  averred  that 
the  tenant  against  whom  the  first  writ  was  brouHit 
was  not  tenant  of  the  tenement  when  the  writ  was 
abated,  and  that  he  obtained  it  by  some  means  since 
that  time  by  purchase,  succession,  or  escheat,  in  such 
case  the  plaintiff  may  resort  to  another  like  writ,  and 
the  writ  shall  hold  good,  in  respect  of  the  right  of  ac^ 
tion  which  commenced  after  the  writ  abated. 

6.  If  any  person  attached  declare  in  court  that  he  has 
nothing  in  the  tenement  nor  claims  anything,  without 


I,  *120  h.]    PROCEEDINGS  IN  ASSIZES.  249 

^making  any  reservation,  and  such  confession  be  re- 
corded, he  will  be  thereby  for  ever  after  foreclosed  of 
every  right  which  he  may  have  had  until  that  time  in 
the  tenement,  if  this  exception  be  used  against  him.^ 

7.  If  when  the  parties  are  come  to  trial  the  plaintiff 
has  notour  letter  patent  for  trial  of  his  suit,  the  Justices 
have  no  power  to  hear  or  determine  anything.  And  if 
the  tenant  enter  nevertheless  into  his  defence,  and  lose, 
he  may  still  recover  his  former  position,  and  whatso- 
ever the  Justices  shall  do  in  such  case  shall  be  held  en- 
tirely null  and  void.  But  if  the  plaintiff  has  the  patent, 
let  it  be  immediately  read  in  audience,  and  if  any 
doubt  arises  thereon,  the  tenant  my  have  on  that  ac- 
count a  dilatory  exception  to  ward  off  tlie  assise.^  After- 
wards let  oyer  be  had  of  the  writ  close.  And  let  it  be 
immediately  demanded  of  the  plaintiff  of  what  free- 
hold he  makes  his  plaint,  and  let  the  quality  and 
quantity  be  imbreviated.  Next  let  our  Justices  ex- 
amine how  and  by  what  title  the  plaintiff  had  a  free- 
hold therein  ;  for  in  every  demand  it  is  not  sufficient 
merely  to  demand,  but  the  plaintiff  must  show  by  what 
right  he  demands  ;  and  this  rule  applies  not  only  to 
things  movable,  but  to  things  immovable,  and  not  only 

^  '  Suppose  A  to  bring  a  writ  of  novel  disseisin  against  B,  wlio 
is  tenant.  B  disclaims.  The  writ  abates.  A  desires  to  enter. 
B  will  not  suffer  him.  What  remedy  shall  A  liave?  gw.'  Note 
in  MS.  N. 

2  '  Note,  that  if  the  Justice  takes  cognizance  of  any  plea  with- 
out or  beyond  their  warrant  or  otherwise,  recovery  may  be  had 
upon  them  by  bill  to  the  king's  parliament."    Note  in  MS.  N. 


260  BEITTOX.  [I,  *121. 

to  claims  of  possession,  but  to  cluims  of  riglit.  And 
whoever  will  not  make  that  appear,  is  not  entitled  to 
be  answered. 


^CHAPTER  XVI. 

Of  Title  to  Freehold. 

1.  A  title  of  freehold  may  be  acquired  several  ways,^ 
as  by  succession  of  inheritance,  by  feoffment,  confirma- 
tion, quitclaim,  recognizance  of  gift  in  court  of  record, 
chirograph,  judgment  of  our  court,  escheat,  reversion, 

1  '  Note,  that  albeit  tlie  first  part  of  this  chapter  saith,  that 
there  are  sundjy  titles  of  frank-tenement,  John  de  Longeville  of 
Northampton  tells  you  shortly  (Jolian  de  Longeville  de  Northamp- 
ton vus  dist  curtement)  that  there  are  but  two,  and  no  more,  to 
wit,  inheritance  and  purchase,  whicli  are  principals,  and  all  the 
rest  are  accessories  and  comprised  in  the  two.  For  recog- 
nizance and  judgment  of  court  are  sometimes  given  by  reason  of 
purchase,  sometiines  of  inheritance.  But  confirmation,  quit- 
claim, action  of  dower  and  of  curtesy  of  England,  and  in  all 
other  cases,  (except  inheritance  and  its  accessories,  as  reversion 
and  escheat,)  are  comprised  in  purchase.  Seignory  purchased 
also  gives  rise  to  escheat.  And  if  the  lordship  descend  before 
the  escheat  liappens,  this  is  rather  inheritance  than  purchase  ; 
for  the  purchase  is  the  acquisition  (conqueste)  of  some  riglit  to 
which  tlie  purchaser  before  was  entirely  a  stranger.'  (Note  in 
MS.  N.)  I  have  extracted  this  note,  principally  on  account  of 
the  light  which  it  may  throw  on  the  origin  of  the  whole  series  of 
notes  of  which  I  have  made  such  frequent  use.  See  the  Introduc- 
tion by  the  Editor. 


I,  *121  I.]   OF  TITLE  TO  FREEHOLD.  251 

dower,  curtesy  of  England,  fee-tail,  in  mortgage,  or  by 
•condition,  or  until  so  much  money  be  levied  by  judg- 
ment  of  our  court,  or  by  simple  feoffment,  or  by  peace- 
able seisin  after  a  wrongful  entry,  or  by  the  other 
cases  aforesaid  ;  in  which  it  is  necessary  for  the  plain- 
tifiP,  if  he  expects  to  be  answered,  to  set  forth  his  title, 
or  at  least  to  say  that  he  was  in  peaceable  seisin  so 
long  a  time,  that  he  ought  not  to  have  been  disseised 
without  judgment,  so  that  a  freehold  had  accrued  to 
him  by  the  sufferance  and  negligence  of  the  true  owner, 
whatever  his  entry  may  have  been,  and  that  this  seisin 
■continued  until  the  tenant  and  the  other  disseisors 
named  in  the  writ  wrongfully  and  witliout  judgment 
disseised  him,  and  thereof  he  prays  the  assise. 

2.  If  the  plaintiff  states  his  title  by  succession  of  in- 
heritance, then  it  must  be  inquired  Avhether  he  found 
the  fee  vacant  or  not.  For  if  he  found  no  other  person 
in  seisin,  and  he  is  next  heir  to  the  ancestor  whose  in- 
heritance he  claims,  the  bare  setting  his  foot  in  the 
-capital  messuage  of  his  inheritance  is  enough  to  give 
him  a  seisin,  whoever  may  be  the  ^deforceor,  whether 
brother  or  stranger,  and  that  not  only  of  the  messuage 
but  of  as  much  of  the  inheritance  whereof  his  ancestor 
-died  seised  as  belongs  to  the  messuage,  by  reason  of 
both  rights  being  united  in  him,  that  is  to  say,  the  pos- 
session and  the  property.  In  like  manner  it  is  witli 
respect  to  a  right  by  escheat,  reversion,  or  formedon, 
and  in  all  cases  where  the  possession  is  actually  united 
with  the  property. 

3.  It  is  otherwise  where  both  riirhts  are  not  imme- 


252  BRITTOK  [I,  *122, 

diately  united  in  one  person,  as  in  the  case  of  intruders, 
bastards,  pretended  heirs,  and  others  who  have  no 
right  of  property  but  only  the  naked  possession.  The 
same  is  true  of  some  purchasers,  as  those  who  under 
colour  of  feoffment  thrast  themselves  into  any  tenement^ 
whereof  the  feoffors  never  so  far  put  them  in  seisin 
but  that  they  themselves  died  seised  thereof.  So  it  is 
of  those  who  are  excepted  in  feoffments,  as  Jews^ 
persons  in  religion,  and  other  excluded  or  prohibited 
persons.  So  of  those  who  enter  by  disseisin  or  through 
disseisors,  and  of  all  others  who  enter  to  the  damage  or 
prejudice  of  any  one.  For  those  who  enter  into  any 
tenement  by  such  as  have  no  right  to  give  or  alienate 
the  same,  as  by  farmers  or  termors,  or  by  those  who 
hold  under  condition,  or  by  bailiff,  guardian,  ^villains, 
or  others  not  being  the  true  owners,  can  have  no  free- 
hold unless  by  peaceable  seisin  and  lapse  of  time,  or 
where  the  alienation  was  conditional,  until  the  con- 
dition be  satisfied.  Neither  can  such  as  enter  b}'  those 
who  have  committed  felony  of  which  they  are  after- 
wards attainted.  Nor  those  who  enter  by  virtue  of 
feoffments  made  by  bastards,  where  the  bastards  were 
not  themselves  enfeoffed  to  them  and  their  assigns  ;  for 
it  was  in  favour  of  bastards  that  the  word  assigns  was 
first  devised  to  be  inserted  in  feoffments. 

4.  When  the  plaintiff  shall  have  set  forth  his  intent 
and  title,  it  then  behoves  the  tenant  to  make  out  his 
defence,  if  he  can,  and  to  show  what  right  he  had  to 
eject  or  disturb  the  plaintiff.  And  if  the  tenant  in 
support  of  his  title  produces  a  charter  of  the  plaintiff, 


I,  *122  h.]  EXCEPTIONS  TO  THE  WKIT.        253 

that  shall  not  avail  him,  unless  livery  of  seisin   was 
made  to  him  by  the  free  will  of  the  donor. 

5.  And  if  the  tenant  say  that  he  has  no  title  and 
claims  none,  still  it  does  not  follow  but  that  inquisition 
be  made  by  the  assise,  whether  he  disseised  the  plaintiff 
tortiously  or  not,  and  whether  with  arms  or  by  force, 
and  whether  in  the  night  or  by  day.  And  concerning 
the  damages  and  the  other  circumstances,  let  judgment 
be  given  as  shall  be  hereafter  mentioned,  according  to 
the  verdict. 


^CHAPTER  XVII. 

Of  exceptions  to  the  writ. 

1.  The  immediate  taking  of  this  assise  is  prevented 
in  many  ways,  as  by  peremptory  exceptions,  such  as 
exceptions  of  naif  ty  or  villenage,  of  condition,  covenant, 
quitclaim,  confirmation,  release,  difficulty  of  judgment,^ 
fine  and  chirograph,  lapse  of  time  and  others ;  and  also 
by  dilatory  exceptions,  as  by  exceptions  to  abate  the 
writ,  exceptions  to  the  judge,  and  to  the  person  of  the 
plaintiff,  and  to  the  tenant's  own  person  ;  but  excep- 

^  '  Difficulty  of  judgment  is  a  shameful  reason  for  delay  (un 
delay  mult  honteus) ;  because  the  king,  who  ought  to  govern  the 
people  by  the  law,  ought  not  to  be  ignorant  of  it  (la  mesconus- 
tre);  nor  his  Justices,  unless  it  be  in  some  outrageous  and  per- 
plexed case  (cas  horrible  e  deguise,)  tlien  common  counsel  is 
better  than  private  haste.'    Note  in  MS.  N. 


254  BKITTOK  [I,  *122  h. 

tions  to  abate  the  writ  must  be  proposed  before  the  ex- 
ception to  the  person  of  the  plaintiff. 

2.  Supposing  the  jurisdiction  of  the  Justice  to  be 
confirmed,  the  tenant  may  then  aid  himself  b\'  ex- 
ceptions in  abatement  of  the  writ,  as  for  a  defect  found 
in  the  writ,  as  by  an  erasure  in  a  suspicious  place,  or 
if  the  writ  was  never  sealed  wath  our  seal,  or  if  the 
ordinance  or  st^de  of  our  Chancery  is  not  observed. 
The  writ  is  also  abatable  and  defective  for  want  of 
date ;  likewise  for  a  defect  in  the  Avriting,  as  being^ 
written  in  two  hands,  or  with  different  inks  ;  and  for 
damage  to  the  writ,  as  if  it  be  torn,  marred,  or  can- 
celled ;  likewise  for  defect  of  the  patent,  as  on  account 
of  an  erasure,  or  bv  reason  of  the  seal  being  fraudulent!  v 
attached  thereto.  And  in  all  cases  of  falsification  of 
our  writs,  we  will  that  such  suspicions  be  cleared  up, 
and  the  like  as  to  illegal  distresses  ;  ^  but  these  cases 
shall  be  determined  only  by  Justices  thereto  author- 
ised. The  suspected  persons  however  shall  be  forth- 
with attached. 

3.  The  words  in  the  writ,  '  has  complained  to  us,' 
may  furnish  ground  for  an  exception  to  abate  the  writ 

^  The  text  in  this  passage  seems  to  be  corrupt,  and  the  true 
reading  is  not  recoverable  with  certainty.  I  liave  ventured  to 
introduce  tlie  word  pxirgez  (perhaps  originally  written  puriez) , 
of  wliich  there  appear  to  be  traces  in  tlie  various  readings.  T 
think  the  whole  may  possibly  have  stood  as  follows  :  '  qe  les 
suspecciouns  soint  puriez  et  les  maiiueis  brefs  detenus  et  deter- 
minez,'  «fec.  :  '  that  the  suspicions  be  cleared  up,  and  the  forged 
or  suspected  writs  impounded.'  The  verb  jmrger  is  similarly 
used  in  1.  i.  c.  2.  s.  6,  ante,  p.  11. 


I,  *123.]      EXCEPTIONS  TO  THE  WEIT.        255 

*for  want  of  another  who  has  as  much  or  more  right  to 
complain  than  the  plaintiff  ;  as  where  the  plaint  is  of  the 
wife's  freehold,  and  the  husband  only  is  named,^  and 
in  other  like  cases,  where  the  writ  ought  to  run, '  have 
complained  to  us,'  &c. 

4.  The  writ  is  also  abatable  if  purchased  before  the 
disseisin,  and  also  if  the  cause  of  action  has  ceased 
though  the  disseisin  ^vas  in  fact  committed,  as  if  the 
disseisor  has  restored  the  tenement  to  the  disseisee, 
who  has  consented  to  take  it  back  by  such  surrender. 
But  if  he  had  retaken  it  by  his  own  force,  then  it  should 
be  worse  for  the  plaintiff.  Also  if  the  plaintiff  has 
before  withdrawn  himself  from  a  like  writ,  or  a  like 
assise,  if  this  be  verified.  So  likewise  if  the  plaintiff 
has  before  made  his  plaint  by  a  writ  pending,  founded 
upon  the  seisin  of  another,  or  by  a  Avrit  of  a  higher 
nature,  because  the  order  of  pleas  has  not  been  ob- 
served. 

5.  The  writ  is  also  abatable  if  it  is  not  w^ell  framed 
according  to  the  case.     So  if  the  writ  be  badly  pur- 

1  The  annotator  in  MS.  N.  discusses  the  law  here  laid  down  at 
some  length,  and  distinguishes  as  follows  :  '  If  the  husband  has 
had  issue  and  consequently  action  to  hold  by  the  curtesy,  he 
shall  be  answered;  otherwise  not.  For  the  husband  detained 
by  his  wife  out  of  his  wife's  right,  whereof  an  estate  by  the 
curtesy  has  accrued  to  him,  shall  recover  against  the  wife  by  the 
assise,  much  more  against  the  stranger.  So  likewise  of  their 
common  purchase,  and  of  the  several  right  of  the  husband.  But 
suppose  the  wife  to  keep  out  her  husband  from  the  wife's  right, 
qucero  whether  he  shall  recover.'  See  above,  c.  11.  s.  16,  c.  13.  s. 
5,  and  below,  c.  18.  s. 


256  BRITTON.  [I,  *123  b. 

chased,  as  if  several  plaintiffs  are  named  in  a  writ 
where  there  ought  to  be  different  assises  or  the  reverse. 
So  where  any  tenement  is  acknowledged  to  two  men 
to  hold  jointly,  if  one  has  seisin  thereof,  and  is  after- 
wards ejected,  and  he  brings  plaint  alone  of  being 
ejected  and  disseised  of  the  whole,  the  writ  fails,  though 
the  other  parcener  was  never  in  seisin  ;  for  the  seisin 
was  delivered  to  him  as  well  in  the  name  of  his  par- 
cener as  in  his  own  proper  name  ;  *and  he  is  sufficiently 
seised  in  whose  name  the  seisin  is  taken,  if  he  holds 
o^ood  what  was  done  in  his  name. 

6.  The  writ  may  be  faulty  in  several  ways,  as  if  it  is 
purchased  against  him  who  is  tenant  in  the  name  of 
another,  as  against  a  bailiff,  or  farmer,  or  a  guardian, 
or  a  canon,  or  a  servant,  without  naming  the  principal 
in  the  writ.  Also  by  mistake  of  Christian  names  in 
the  writ,  as  Reynard  for  Reyner,  Amice  for  A  vice,  or 
for  mistake  of  surnames ;  likewise  for  omission  of  syl- 
lables or  of  letters  in  the  words  or  sentences ;  likewise 
for  want  of  a  surname  of  dignity,  as  if  John  is  a  secular 
man,  and  Master  of  a  Hospital,  and  complains  that  he 
is  disseised  for  a  freehold  appendant  to  the  same  hos- 
pital, and  is  not  named  Master  of  the  Hospital.  The 
same  rule  holds  in  the  case  of  a  parson  of  a  church,  and 
all  prelates  and  persons  of  religion,  demanding  tene- 
ments as  appurtenant  to  their  churches  or  prebends, 
where  they  have  not  named  themselves  parson  of  such 
a  church,  or  archbishop  or  bishop  or  canon  or  prelate. 
So  if  a  canon  secular  has  a  certain  dignity  in  any 
church  whereof   he  is  a  canon,  to  which  dignity  he 


I,  *124.]      EXCEPTIONS  TO  THE  WRIT.        25Y 

claims  the  tenant  in  demand  to  be  appendant,  as  to  a 
deanery,  treasury,  or  chantry,  if  he  is  not  named  in  the 
writ  by  the  same  surname  of  dignity  or  office,  the  writ 
is  abatable.  So,  in  case  of  the  tenant,  *if  the  dignity 
and  office  to  which  he  claims  the  tenant  named  in  the 
plaint  to  be  annexed  are  not  specified. 

7.  The  writ  may  also  abate  for  mistake  in  the  town, 
as  if  a  hamlet  is  named  where  the  town  to  which  the 
hamlet  belongs  ought  to  have  been  named.  The  dif- 
ference between  manors,  townships,  and  hamlets  will 
be  noticed  in  the  chapter  concerning  Recovery  of 
Hiffht.  So  likewise  for  want  of  distinction  in  the  writ 
between  vills  of  a  like  name  in  the  same  county  ;  as 
Also  if  the  tenant  is  not  situate  in  the  vill  named  in  the 
writ. 

8.  If  the  situation  be  disputed  between  the  parties, 
the  truth  shall  be  inquired  by  office,  but  not  so  that  the 
gaining  or  losing  of  the  action  shall  be  at  stake,  though 
the  parties  be  willing  that  it  should  be  so.  For  the 
exception  is  put  forward  to  abate  the  writ,  and  not 
against  the  assise.  And  if  the  jurors  say  that  the  tene- 
ment is  not  in  the  vill  named  in  the  writ,  the  writ 
abates,  but  the  assise  and  the  wrong  nevertheless  re- 
main undetermined,  and  the  plaintiff  may  resort  to  an- 
other like  writ,  whether  he  withdrew  himself  from  his 
writ  with  or  without  leave.  And  if  they  say  that  the 
tenement  is  in  the  vill  named  in  the  writ,  then  let  the 
assise  be  taken.  And  if  the  jurors  do  not  know  for 
certain  in  which  of  the  two  vills  the  tenement  lies, 
then  let  it  be  demanded  of  the  plaintiff  whether  he 

17 


258  BlilTTOK  [I,  *124  K 

claims  anything  of  this  tenement  in  any  vill  not  named 
in  the  writ,  and  afterwards  of  the  tenant,  whether  he 
claims  anything  in  the  vill  named  ;  and  if  they  say  no, 
then  *let  the  jurors  of  the  assise  and  others  of  the 
neighbourhood  be  ordered  to  set  up  proper  metes  and 
bounds  between  the  two  vills.  The  like  shall  be  done 
where  a  difference  arises  between  parties  concerning- 
the  boundaries  of  two  manors  or  two  counties,  so  that 
the  plea  and  dispute  shall  be  tried  and  determined  by 
perambulation.  And  if  the  plaintiff  is  under  age,  the 
plea  must  be  suspended  and  respited  until  he  is  of  age ; 
for  no  infant  can  answer  to  his  own  prejudice,  whether 
he  claims  such  a  thing  in  such  a  county,  or  in  such  a  vill 
or  manor,  or  not,  on  account  of  the  perambulation 
which  follows,  whereby  the  right  as  to  the  boundaries 
would  be  determined  for  ever.  Therefore  the  plea  and 
perambulation  shall  stand  to  be  taken  at  the  plaintiff's 
majority,  for  before  that  time  he  cannot  give  his  assise 
to  the  perambulation. 

9.  If  the  jurors  say,  that  part  of  the  tenement  is  in 
one  vill  or  one  county  and  part  in  the  other,  then  let 
the  assise  be  taken  for  that  part  of  the  tenement  which 
is  in  the  vill  or  in  the  county  named  in  the  writ,  and 
not  for  the  rest.  It  may  thus  happen  that  both  the 
parties  remain  in  our  mercy.  In  the  same  manner 
perambulation  shall  be  made  in  case  of  a  difference 
between  the  parties,  where  the  contest  is  in  what  fees 
or  in  what  baronies  the  tenement  lies,  where  one  says 
in  one  fee  and  the  other  in  another,  and  in  particular 
where  the  jurors  are  uncertain ;  saving  that  in  all  these 


I,  *125.]   EXCEPTIONS  TO  THE  WEIT.  259 

*cases  it  shall  be  demanded  of  the  parties,  as  before 
mentioned,  whether  they  claim  anything  or  not. 

10.  The  writ  will  also  abate,  if  one  demands  a  tene- 
ment in  privileged  soil,  where  such  writs  do  not  run, 
as  in  our  ancient  demesnes,  where  no  writs  run  except 
a  writ  of  right  close  according  to  the  custom  of  the 
manor.  Exceptions  may  also  be  founded  upon  those 
words  of  the  writ  which  say, '  of  his  freehold,'  inasmuch, 
for  example,  as  the  freehold  never  was  the  plaintiff's, 
but  his  wife's ;  and  if  the  husband  and  wife  are  both 
plaintiffs  and  complain  that  they  are  disseised,  they 
thereby  suppose  that  they  both  had  a  freehold,  and 
that  they  held  in  common  ;  and  upon  this  an  exception 
may  chance  to  arise  to  abate  the  writ.  So  also,  for 
not  distinguishing  between  the  father  and  the  son, 
where  the  son  has  committed  the  disseisin  and  bears 
the  same  Christian  name  and  surname  as  his  father. 
And  where  any  one  has  two  surnames,  that  surname 
shall  hold  by  which  he  is  best  known.  There  are 
several  other  exceptions  to  abate  the  writ  which  shall 
be  noticed  among  exceptions  in  a  plea  of  right. 

12.  If  the  writ  be  lost  or  maliciously  taken  off  the 
files,  then  the  authority  of  the  Justice  ceases  ;  for 
without  warrant  by  original  writ  out  of  our  Chancery 
no  Justice  hath  record.  But  if  there  be  any  suspicion 
of  malice,  let  it  be  forthwith  inquired  by  whose  malice 
the  writ  was  removed  ;  and  whosoever  shall  be  con- 
victed thereof  shall  be  taken  and  punished  by  imprison- 
ment and  heavy  ransom. 


260  BKITTOK  [I,  *125  I, 


*CHAPTER  XVIII. 

Of  exceptions  to  the  person  of  the  plaintif. 

1.  The  writ  being  established,  the  tenant  may  still 
aid  himself  by  exceptions  against  the  person  of  the 
plaintiff,  as  that  he  is  excommunicated.  For  a  person 
excommunicate  is  one  that  is  out  of  communion  on 
account  of  a  leprosy  of  the  soul,  as  a  leper  is  for  the 
disease  of  his  body  ;  and  so  long  as  a  person  is  ex- 
communicated, he  ought  not  to  commune  with  any  one 
nor  any  one  with  him,  neither  is  he  entitled  to  be 
answered  in  any  action,  as  shall  be  noticed  in  the  plea 
of  right. 

2.  The  tenant  may  also  aid  himself  in  a  proper  case 
by  exception  of  villenage  against  the  plaintiff  in  the 
following  form  :  '  Assise  ought  not  to  lie,  inasmuch  as 
the  plaintiff  is  my  villain.'  But  then  he  must  also  add, 
that  he  is  seised  of  his  suit  and  of  his  chattels,  or  that 
he  holds  of  him  in  villenage ; — not  however  for  the 
purpose  of  recovering  him  for  his  villain,  but  to  bar 
the  assise  in  the  plaintiff's  action.  But  if  the  plaintiff 
has  by  his  pleading  or  by  consent  put  himself  upon  the 
jury  concerning  any  circumstance  of  his  estate,  and  he 
be  thus  as  it  were  attainted  for  the  villain  of  the  tenant, 
the  tenant  may  well  take  him  away  and  put  him  in  the 
stocks,  or   drive   him   off  the  land,  as  he   should  his 


I,  *126.]  TO  THE  PERSONS.  261 

villain,  yet  not  so  as  to  be  justified  by  the  judgment 
of  our  court  without  another  writ,  but  at  his  own  peril. 
*For  if  the  alleged  villain  can  prove  himself  to  be  of 
free  condition,  as  having  been  enfeoffed  to  himself  and 
his  heirs  by  his  lord,  or  in  any  other  manner,  he  shall 
have  an  action  by  writ  of  trespass  or  otherwise,  against 
every  one  who  has  done  him  wrong  or  grievance. 

3.  So  likewise  the  exception  will  fail  if  the  plaintiff 
can  prove  by  the  assise  or  by  attaint  that  he  has  lived 
out  of  the  lord's  fee  and  out  of  his  seisin  for  a  year  and 
a  day,  claiming  free  estate,  without  claim  by  the  lord  ; 
so  that  the  lord  cannot  take  or  recover  him  as  his  villain 
without  a  writ  of  naifty.  For  no  one  can  claim  any 
right  to  the  appurtenances  or  accessories  who  has  no 
right  in  the  principal  subject  of  action  ;  and  therefore 
the  lord  in  such  cases  should  first  demand  the  body  of 
his  villain  by  writ  of  naifty  ;  and  after  he  has  recovered 
the  body,  he  shall  have  the  goods  and  the  land  and  all 
that  belongs  to  the  body.  And  if  the  lord  take  any- 
thing from  such  fugitive  without  judgment  of  our 
court,  he  acts  against  our  peace.  And  therefore  we 
will  that  such  fugitives  shall  have  their  action  to 
recover  from  their  lords  what  their  lords  shall  have 
taken  from  them  by  force  after  a  year  and  a  day 
from  their  flight,  until  the  right  in  the  bodies  be 
proved. 

4.  Therefore  in  this  exception  it  is  proper  to  examine 
whether  the  lords  who  put  forward  such  exceptions 
are  at  that  vervtime  seised  of  those  whom  thev  allege 
to  be  their  villains,  and  of  their  suit  and  chattels,  or 


262  BRITTOK  [I,  *127. 

whether  they  were  formerly  their  villains,  and  have 
since  fled  from  them  ;  and  if  so,  how  long  since.  For 
if  they  have  been  fugitives  above  a  year,  there  is  no 
room  for  the  exception,  as  has  been  before  said ;  but 
if  the  lords  can  aver  their  seisin  within  a  year  and  day, 
then  it  holds  good ;  and  in  like  manner,  if  the  lord 
can  aver  diligent  suit  to  reclaim  and  recover  him  as 
his  fugitive  and  villain,  although  he  has  not  been  seized 
of  him  within  the  year  and  day. 

5.  If  the  tenant  pleads  that  the  plaintiff  is  the  villain 
of  another,  he  must  further  say,  that  he  does  not  hold 
the  tenements  Avhich  he  demands  in  his  own  name,  but 
in  the  name  of  the  lord  whose  villain  he  is ;  in  which 
case  the  assise  shall  stand  over,  unless  the  plaintiff  can 
show  by  charter  of  feoffment  that  he  was  enfeoffetl 
to  him  and  his  heirs.  And  even  if  he  proves  such  a 
purchase,  this  j)roof  will  not  avail  unless  he  further 
show  that  his  lord  was  never  seised  thereof  since  his 
purchase ;  and  if  it  be  found  that  the  lord  seised  the 
tenement  after  it  had  been  purchased  by  his  villain, 
although  he  afterwards  delivered  it  back  to  the  villain 
to  hold  at  his  will,  the  assise  fails,  because  the  villain 
Avas  not  tenant  in  his  own  name,  but  in  the  name  of 
his  lord.  "And  if  the  lord  was  never  seised  of  the  land, 
then  the  exception  of  villenage  shall  not  hold  against 
any  stranger. 

6.  If  the  plaintiff  pleads  in  replication  to  the  ex- 
ception of  villenage,  that  he  will  not  nor  ought  to 
iiave  his  condition,  whether  he  be  free  or  not,  tried  by 
the  assise,  in  such  case  the  assise  shall  l)e  taken  upon 


J,  *127  5.]  TO  THE  PERSOK  263 

the  disseisin  ex  officio  judicis^  unless  the  tenant  will 
waive  the  exception  ;  and  judgment  shall  be  given  ac- 
cording to  the  verdict ;  for  we  will  that  in  favour  of 
liberty  no  one  of  free  estate  be  in  such  case  obliged  to 
put  himself  upon  the  jurors  of  the  assise  to  determine 
his  condition  without  his  consent ;  but  it  is  just  that 
the  spoliation,  which  is  founded  sirapl}^  upon  possession, 
be  first  tried,  and  afterwards  the  right  concerning  the 
condition,  which  is  of  a  higher  nature. 

7.  But  in  writs  which  concern  the  property  and  the 
right,  as  in  the  writs  of  right  of  customs  and  services, 
where  no  other  customs  or  services  are  demanded  than 
those  which  are  due  of  right,  and  in  other  writs  of  right 
this  exception  is  of  so  great  force,  that  if  the  villain,  or 
he  who  is  alleged  to  be  a  villain,  refuses  to  take  issue 
upon  it,  judgment  shall  thereupon  be  given  against 
bim  ;  and  if  the  plaintiff  puts  himself  upon  the  assise, 
and  the  assise  passes  against  the  lord,  then  the  villain 
shall  for  ever  after  be  quit  from  the  claim  of  his  lord ; 
and  if  against  the  villain,  he  shall  for  ever  after  remain 
*his  villain  as  much  as  if  he  had  recovered  him  by  writ 
of  naifty. 

8.  Bat  in  a  possessory  writ  it  has  not  so  much  force, 
for  although  it  pass  against  his  condition,  it  is  not 
thereby  impaired  or  prejudiced.  For  the  exception 
serves  only  to  bar  the  plaintiff  of  his  demand,  and 
does  not  alter  the  condition  in  any  point,  whether  the 
inquiry  of  the  jury  be  concerning  the  plaintiff  or  con- 
cerning his  father,  whether  he  died  a  villain,  or  in  the 
condition  of  a  freeman  althoug-h  he  was  a  villain.     An 


264  BRITTON.  [I,  *12S. 

inquest  upon  bastardy  is  similar  in  its  effect ;  for  if  an 
inquest  be  taken  upon  the  exception  that  the  father  or 
other  ancestor  of  the  plaintiff  died  a  bastard,  although 
it  be  taken  by  consent  of  the  parties,  and  the  inquest 
find  that  he  did  die  a  bastard,  yet  the  status  of  no 
person  is  thereby  altered  or  changed. 

9.  Other  exceptions  there  are  against  the  person  of 
the  plaintiff,  as  if  the  writ  is  purchased  in  his  own 
name,  where  the  complaint  is  of  a  wrong  done  to  an- 
other as  well  as  himself ;  as  where  the  husband  alone 
is  named  in  the  writ,  and  the  freehold  is  the  wife's,  ex- 
cept in  the  case  of  disseisin  done  by  a  wife  to  her  hus- 
band. And  if  the  writ  be  purchased  in  the  name  of 
the  husband  and  his  wife,  jointly  enfeoffed  of  the  free- 
hold of  the  wife,  and  one  of  them  die  pending  the  writ, 
the  writ  is  thereby  abatable.  And  the  like,  where  any 
woman  takes  a  husband  pending  her  writ  in  which  she 
alone  is  named.^  Some  plaintiffs  also  may  be  debarred 
from  their  plaints,  inasmuch  as  they  have  no  several 
action  to  demand  anything  certain  in  severalty  ;  as  par- 
ceners and  others  holding  in  *common,  none  of  whom 
could  ever  tell  where  his  own  share  was.  But  if  the 
plaintiff  demands  to  hold  in  common,  he  shall  be  heard. 

10.  Sometimes  an  exception  arises  on  behalf  of  the 

1  '  Ex  hoc  nota,  that  none  can  be  party  to  the  purclmse,  if  lie 
be  not  expressly  named,  as  when  the  husband  marries  the 
disseisee  after  purchase  of  her  writ.  But  it  is  not  so  of  a  feme 
sole  disseiseress  who  takes  husband  after  a  writ  purchased  [against 
herl  ;  because  she  may  do  it  of  malice  [to  defeat  the  action].* 
Note  in  MS.  N. 


I,  *128  b.]  TO  THE  ACTION.  265 

tenant,  from  his  own  person,  as  where  he  can  prove  by 
the  assise  that  he  is  not  disseisor.  Also,  where  the 
lord  of  the  fee  is  plaintiff  for  arrears  of  his  rent,  with 
which  the  tenement  that  has  been  viewed  is  charged, 
before  he  has  tried  to  distrain  his  fee.  For  if  the 
tenant  demand  judgment,  whether  the  assise  ought  to 
pass,  before  the  lord  has  essaj'^ed  to  distrain  his  fee,  or 
is  disavowed  as  lord,  where  the  tenant  acknowledges 
the  services  in  whole  or  in  part,  in  such  case  this  assise 
does  not  lie,  but  distress  from  time  to  time  for  the 
service  acknowledged.^  And  if  the  lord  by  reason  of 
his  poverty  is  not  able  to  distrain  his  tenant,  then  let 
the  sheriff  be  commanded  by  precept  of  the  Justices 
that  he  aid  the  plaintiff  in  distraining  his  fee. 


CHAPTER  XIX. 

Of  Exceptions  to  the  Action. 

1.  To  the  words  in  the  writ,  '  unjustly  and  without 
judgment,'  the  tenant  may  plead  that  it  was  by  judg- 
ment ;  and  then  it  must  be  examined  whether  by  judg- 
ment of  our  court  or  of  that  of  another,  and  whether 
by  our  writ  or  without.  *And  if  it  was  by  judgment 
of  our  court  or  of  another  without  our  writ,  tiien  the 
exception  shall  not  avail,  but  all  that  was  done  shall  be 

^  There  appears  to  be  some  corruption  in  tlie  text,  which  tlie 
MSS.  do  not  enable  us  to  set  right.  Possibly  we  ought  to  read, 
'  destresce  soulement  del  service  conu  et  otreie,'  '  distress  only 
for  the  service  acknowledged  and  granted.' 


266  BRITTOK  [I,  *129. 

annulled.  For  without  an  authority  given  and  defined 
by  us  no  one  can  be  judge  over  another,  especially  to 
take  cognizance  of  or  determine  concernino-  the  free- 
hold  of  another.  If  the  plaintiff  admits  that  the  judg- 
ment was  by  original  writ,  but  says  that  it  was  wrong- 
ful, the  assise  in  such  case  shall  fall,  and  he  must  be 
told  to  seek  his  remedy  by  writ  of  false  judgment. 
But  the  assise  shall  not  stand  over  for  any  judicial  writ 
not  issuing  out  of  an  original. 

2.  If  any  one  puts  in  view  a  tenement  consecrated 
"by  the  bishop,  or  any  other  thing  which  ought  not  to 
be  the  property  of  any  one,  the  action  and  assise  there- 
by fall,  and  the  plaintiff  shall  be  in  mercy  for  his  false 
plaint.  And  as  such  tenement  ought  not  to  continue 
in  the  possession  of  the  tenant,  let  inquiry  be  made 
concerning  the  tenement ;  and  if  it  be  found  that  the 
tenement  ought  not  to  remain  with  the  tenant,  let  the 
tenant  be  in  mercy  for  his  tortious  occupation,  and  the 
tenement  be  restored  to  its  former  state.  Let  like 
proceedings  be  taken  with  regard  to  a  tenement  oc- 
cupied in  severalty  which  ought  to  be  common  to  any 
general  body,  or  other  community.  With  respect  to 
the  king's  highway,  or  other  like  thing,  an  assise 
shall  always  fall  and  be  turned  into  trespass  ;  and  in- 
quiry shall  be  made  of  the  trespass  and  purpresture, 
and  judgment  shall  be  given  according  to  the  verdict. 

*3.  Sometimes  the  assise  falls  for  uncertainty,  al- 
though it  is  not  on  that  account  turned  into  a  jury  or 
perambulation,^  as  happens  between  a  woman  and 
*  See  c.  xvii.  s,  8,  p,  319.  and  c.  xx.  below. 


I,  *129  5.]  TO  THE  ACTION.  267 

the  warrant  of  her  dower  before  any  assignment  is 
made  to  her  of  her  dower  in  certain,  w^here  if  both  are 
ejected,  and  the  woman  alone  complains  and  puts  in 
view  the  third  of  the  whole  tenement  as  her  dower, 
yet  she  shall  not  recover  any  tenement  or  any  seisin 
by  the  assise,  inasmuch  as  her  portion  was  never  as- 
certained. But  if  general  seisin  has  been  made  to  her, 
then  it  is  sufficient  to  put  her  in  such  seisin  as  she  had 
before;  and  if  special  seisin  was  given  her,  but  she 
<;annot  now  tell  in  what  place  by  reason  of  the  bound- 
aries being  removed,  or  by  a  like  accident,  then  let 
land  of  the  like  value  be  assigned  to  her  by  the  estima- 
tion of  the  jurors  of  the  assise,  as  much  as  they  can 
estimate  among  themselves  to  have  been  the  amount 
of  the  tenement  whereof  she  was  disseised, 

4.  The  assise  also  falls  for  uncertainty  in  the  person 
.of  the  plaintiff,  as  if  the  jurors  have  no  knowledge  of 
him  at  all.  So,  where  they  do  not  know  for  certain 
whether  he  held  the  seisin  in  his  own  name  or  in  the 
name  of  another.  The  assise  also  falls  where  the 
jurors  do  not  know  who  has  the  better  right,  the  plain- 
tiff or  the  tenant,  as  well  to  the  possession  as  to  the 
property,  *Likewise,  where  the  plaintiff  claims  by  title 
of  gift  or  feoffment,  if  he  was  never  seised  in  the  life- 
time of  the  feoffor.  The  assise  also  falls,  when  brought 
by  two  sisters,  who  complain  in  common  with  their 
husbands,  but  the  husband  of  one  of  them  is  not  named, 
and  this  whether  he  be  a  felon  or  not,  so  long  as  he  is 
living.*     So  if  the  principal  town  is  not  named  ;  for  in 

^-'  A  freeholder  (un  prudome)  has  four  daughters,  two  of  whom 


208  BKITTON.  "  [I,  *130. 

one  town  there  may  be  several  parishes,  and  in  one 
parish  several  manors,  and  several  hamlets  may  belong 
to  one  manor,  as  shall  be  mentioned  in  the  plea  of 
right ;  but  if  the  principal  town  is  not  named,  the  assise 
shall  stand  over. 


CHAPTER  XX. 

Of  Assises  turned  into  Juries. 

1.  Assises  are  put  off  several  ways,  some  for  a  time, 
some  for  ever ;  and  some  are  turned  into  juries  by  assent 
of  the  parties,  where  he  who  refuses  his  assent  after  he 
has  pleaded  shall  be  held  to  fail  in  his  plaint,  or  be  con- 
demned as  undefended  ;  others  ex  officio  Judicis,  as 
where  the  parties  diifer  in  what  vill,  county,  manor, 
fee,  or  barony,  the  tenement  is.  Assises  are  put  off 
for  a  time  by  pleas  in  abatement  and  dilatory  exceptions. 
By  peremptory  exceptions  they  are  barred  for  ever. 

*2.  Some  are  turned  into  juries  by  the  exceptions 
being  denied,  as  in  this  case,  where  the  plaintiff  says 
that  he  was  seised  by  title  of  succession  after  the 
death  of  his  ancestor,  who  died  seised,  and  whose  next 
heir  he  is,  and  after  whose  death  he  presently  entered 

take  husbands.  The  husband  of  one  (!ommits  felony,  for  which 
he  is  outlawed,  and  abjures  the  realm.  Tlie  father  then  dies. 
The  inheritance  is  occupied  by  a  stranger,  and  the  four  daugh- 
ters are  to  purchase  by  the  assise.  Qu.  Wliether  it  is  proper  to 
name  the  felon,  husband  of  one  of  the  daughters,  or  not.  Note 
in  MS.  N. 


1,  *130J.]  INTO  JUEIES.  269 

and  kept  himself  in  seisin  until  tiie  disseisor  wrongfully 
and  without  judgment  ejected  him, — if  the  tenant 
meets  this  by  saying  that  the  ancestor  of  whom  he 
Speaks  never  died  seised  in  his  demesne  as  of  fee,  inas- 
much as  he  held  only  for  term  of  life,  and  that  there- 
fore the  plaintiff  cannot  have  a  freehold  by  any  title 
of  succession  ;  and  if  the  plaintiff  replies  that  the 
ancestor  died  seised  as  of  fee,  then  the  assise  shall  drop, 
and  by  the  assent  of  the  parties  the  jurors  become  as 
it  were  arbitrators ;  and  judgment  shall  pass  accord- 
ing to  their  verdict ;  ^  nevertheless  upon  such  verdicts, 
though  passed  by  common  assent  of  the  parties,  an 
attaint  may  lie. 

3.  So  if  it  be  disputed  between  the  parties  whether 
the  ancestor  held  the  tenement  in  gage  or  under  any 
other  condition  or  not,  and  whether  the  condition  was 
satisfied  or  not.  The  like,  where  the  younger  brother, 
or  bastard,  or  other,  is  ousted  by  the  true  heir,  if  the 
contest  be  which  is  eldest  or  legitimate,  the  truth  of 
these  questions  shall  be  inquired  by  a  jury  by  assent 
of  the  parties  ;  and  the  like  in  other  such  cases  which 
are  numberless,  in  which  the  assise  is  turned  into  a 
jury  by  dilatory  exceptions  between  the  parties. 

*4.  If  the  plaintiff  says  that  he  was  seised  by  title  of 
gift,  until  he  was  wrongfully  ejected,  it  ma}"^  be  said 
in  answer,  that  he  by  whose  gift  he  claims  title  was  never 

1 '  These  things  are  necessary  to  succession,  true  ancestor,  true 
ownership  in  him,  true  succession,  true  heir,  and  true  seisin  ;  of 
which  the  four  turn  the  assise,  and  tlie  fifth  makes  the  assise  in 
its  proper  nature  (en  sa  grasse  nature).'    Note  in  MS.  N. 


270  BRITTOK  [I,  *131. 

in  seisin,  so  as  to  enable  him  to  make  any  gift ;  or  if 
the  donor  was  seised,  he  never  divested  himself  of  the 
seisin  in  his  lifetime  ;  nor  was  he  who  is  plaintiff  ever 
seised  in  the  lifetime  of  the  donor,  but  after  the  death 
of  the  donor  he  by  his  own  force  abated  himself  into 
the  tenement,  out  of  which  the  tenant  as  next  heir 
presently  ejected  him,  so  that  he  was  in  only  by  mere 
abatement ;  and  if  the  parties  by  common  consent  pray 
averment,  the  assise  shall  cease,  and  it  shall  be  inquired 
by  jury  whether  the  plaintiff  was  seised  by  his  own 
abatement  or  by  the  livery  or  induction  of  seisin  by 
the  donor  in  his  lifetime ;  and  judgment  shall  be  given 
according  to  the  verdict, 

5.  If  the  jurors  know  nothing  of  the  facts,  the 
plaintiff  shall  take  nothing  by  his  plaint,  but  be  in 
mercy  for  not  proving  his  contention.  And  if  the  jurors 
are  in  doubt,  the  assise  shall  be  stayed,  and  it  shall  be 
adjudged,  as  before,  against  the  plaintiff. 

6.  If  the  plaintiff  derive  his  title  under  gage  or  con- 
ditional purchase,  and  the  adverse  party  say  that  the 
condition  was  satisfied,  or  that  satisfaction  was  ready  to 
made  be  on  the  day  *named  in  the  deed,  by  denial  of  the 
party  the  assise  shall  cease,  and  shall  be  turned  into  a 
jury,  if  the  parties  consent,  to  inquire  whether  such  satis- 
faction or  tender  was  made  or  not.  For  suppose  now 
that  the  plaintiff  should  say  that  he  is  disseised  of  his 
freehold,  and  should  derive  his  title  under  a  gift  and 
feoffment,  and  say  that  by  the  gift  and  feoffment  of 
the  disseisor  himself  he  was  seised  of  this  tenement,  and 
did  homage  to  him,  and  took  the  prolits,  and  enjoyed 


I,  *131  5.]  INTO  JURIES.  271 

his  peaceable  seisin  from  Easter  until  Christmas,  when 
the  feoffor  himself  wrongfully  ejected  him  ;  if  the 
tenant  answer,  he  ma}'-  well  acknowledge  the  gift  and 
the  feoffment,  and  the  charter  and  the  homage,  but  if 
he  can  prove  by  writing  that  all  these  acts  were  con- 
ditional,^—as  thus,  I  enfeoffed  you  and  took  your 
homage  upon  this  condition,  that  if  I  find  within  the 
year  and  day  that  you  hold  land  anywhere  of  the  king 
in  chief,  I  may  put  myself  in  seisin  and  eject  you  with- 
out wrong,  so  that  when  I  shall  have  found  for  certain 
that  you  hold  elsewhere  of  the  king  in  chief,  I  shall  law- 
fully eject  you  by  virtue  of  that  condition  to  which  you 
assent, — if  such  conditions  can  be  show^n  by  writing  on 
one  side  and  on  the  other,  then  the  plea  shall  proceed 
according  as  the  writings  are  admitted  or  denied. 

*7.  And  if  the  conditional  writings  are  falsely  denied, 
although  this  falsity  be  afterwards  proved,  yet  as  it 
may  happen  that  the  condition  has  not  been  satisfied, 
an  inquir\'  must  of  necessity  be  made  concerning  such 

1  '  Nota,  quod  modemis  diebus  nochai-tercan  be  conditional  on 
account  of  the  statute  Quia  emptores  terrarum.  For  the  pur- 
chaser must  hold  either  of  his  feoffor  or  of  his  chief  ;  and  of  his 
feoffor  only  in  fee  tail.  For  when  once  the  purchaser  is  in  right- 
ful seisin  of  the  fee  and  freehold,  he  cannot  be  ousted  except  by 
liis  own  consent  ;  neither  can  the  donor,  who  has  once  divested 
himself,  have  it  again  except  by  a  new  title.  But  as  soon  as  he 
gives  to  hold  of  the  chief  lord,  he  divests  himself  entirely  (se 
demet  tot  nettement).  Wherefore  the  charter  must  be  absolute 
(simple)  ;  and  if  there  be  any  collateral  deed  of  covenant,  the 
donor  cannot  retain  his  seisin  by  his  own  force,  but  must  use 
his  writ  of  covenant.'  (Note  in  MS.  N.)  See  above,  pp.  236, 
238,  and  notes  there. 


272  BRITTOX.  [I,  *132. 

satisfaction,  and  judgment  shall  go  accordingly,  as  ap- 
pears in  the  chapter  concerning  Right.  For  although 
the  charter  be  proved  good,  yet  it  may  be  void  and  of 
no  force  by  reason  of  its  false  testimony  in  saying,  I 
have  given,  whereas  no  gift  was  ever  made,  although 
there  was  some  proposal  of  a  gift.  Hence  it  is  not  suf- 
ficient to  prove  the  charter  alone,  unless  the  gift  is 
proved  ;  for  it  may  be  that  the  charter  is  good  and 
genuine,  and  yet  the  purchaser  did  not  acquire  the  tene- 
ment by  the  gift  of  him  who  made  the  charter,  but  by 
his  own  abatement,  or  by  disseisin  or  intrusion.  So  on 
the  other  hand,  although  the  charter  be  proved  to  be 
false,  yet  it  may  be  that  the  gift  w^as  good  and  lawful ; 
wherefore  both  the  gift  and  the  charter  must  be 
proved. 

8.  If  such  conditions  are  set  up  without  evidence  of 
any  writings,  the  adverse  party  may  deny  by  their  law, 
Avith  eleven  compurgators,  that  there  ever  was  such  a 
condition.  And  if  the  charter  be  one  of  simple  feoff- 
ment without  condition,  and  the  gift  be  admitted  or 
proved,  then  no  credit  need  be  given  to  an  oral  allega- 
tion of  a  condition  on  account  of  the  presumption  aris- 
ing from  the  charter  which  does  not  mention  any  con- 
dition. 

*9.  If  the  donor  by  virtue  of  any  condition  contained 
in  the  deed  between  him  and  the  purchaser  cannot  put 
himself  in  seisin  and  eject  the  purchaser  according  to 
the  condition,  he  must  in  that  case  be  aided  by  writ  of 
covenant,  in  which  the  process  shall  be  by  the  great 
-and  little  Cajpe^  as  is  in  a  real  action. 


I,  *132  5.]  INTO  JURIES.  273 

10.  It  often  happens  that  the  plaintiffs  are  prevented 
from  recovering  seisin  by  means  of  their  plaints;  as 
where  the  jurors  of  the  assise  have  no  kind  of  knowledge 
or  presumption  as  to  the  agreements  affecting  the  plain- 
tiff/ or  concerning  the  thing  whereof  the  plaint  is 
made.  They  may  also  be  impeded  by  their  own  will, 
as  incase  of  conditions ;  also  by  release  and  quitclaim  ; 
and  by  accord,  as  where  the  person  ejected  has  agreed 
to  accept  the  value  ;  also,  by  charter  of  confirmation 
from  the  person  ejected  ;  also  by  consent,  as  if  the 
disseisor  makes  a  gift  of  the  tenement,  and  the  person 
ejected  executes  a  charter  of  confirmation.  They  may 
also  be  prevented  from  recovering  by  their  own  force 
and  usurpation,  as  if  they  take  back  by  their  own  force 
what  they  ought  to  have  repurchased  by  judgment. 
Difficulty  of  judgment  is  another  impediment.  So  also 
^  legal  judgment.  And  in  all  these  cases  upon  a  dif- 
ference between  the  parties  the  assise  shall  be  turned 
into  a  jury,  and  by  way  of  jury  such  questions  shall  be 
determined. 

*11.  Where  the  plaintiff  grounds  his  title  on  the  '  law 
of  England,'  and  the  tenant  pleads  that  he  cannot  have 
a  freehold  by  this  title  because  he  never  had  issue  by  such 
a  wife,  or  if  he  ever  begat  a  child  the  child  died  in  the 
womb,  or  if  born  alive  it  was  not  a  child  but  a  monster, 
or  supposing  it  to  be  a  child  it  was  never  heard  to  cry ; 
and  if  the  plaintiff  replies  to  the  contrary,  the  assise 

1  The  sense  of  the  original  is  doubtful.     There  appears  to  be 
some  corruption  in  the  text,  which  I  have  found  it  impossible  to 
jemove. 
58 


274  BKITTON.  [I,  *Vd3 

shall  cease  and  be  turned  into  a  jury-  And  if  the  jurors 
say  that  they  saw  the  plaintiff  in  full  seisin,  and  that 
he  was  ejected  therefrom,  but  that  they  know  nothing' 
concerning  any  child  by  reason  that  the  wife  of  the 
plaintiff  died  in  childbed  in  another  part  of  the  country, 
then  the  sheriff  of  that  place  shall  be  commanded  that 
he  take  with  him  the  coroner  of  the  country,  and  in  the 
presence  of  the  parties,  if  they  choose  to  be  there,  in- 
quire where  the  wife  of  the  plaintiff  died,  and  whether 
she  died  in  childbed  or  not,  and  whether  she  ever  had 
a  child  by  this  plaintiff  after  he  espoused  her,  and 
Avhether  it  was  heard  to  cry  or  not,  and  that  he  make 
his  return,  on  such  a  day  and  at  such  a  place,  of  that 
which  he  shall  find  by  inquest ;  and  judgment  shall  be 
given  according  to  the  return. 

12.  Or  the  tenant  may  admit  that  the  woman  in 
whom  the  fee  and  freehold  were  vested  had  children 
b}^  the  plaintiff,  yet  that  the  same  ought  not  to  avail 
him,  inasmuch  as  those  children  were  afterwards  proved 
to  be  bastards  ;  and  if  the  plaintiff  denies  this,  the 
assise  shall  cease  and  be  made  a  jury  by  consent  of 
the  parties.  And  if  the  plaintiff  demands  how  they 
*were  bastards,  and  the  tenant  answer,  because  they 
were  born  before  the  plaintiff  married  their  mother, 
in  such  case  the  truth  shall  be  inquired  by  means  of  a 
jury,  and  not  in  the  form  of  an  assise.  And  if  he  says, 
by  reason  that  the  plantiff  never  married  their  mother, 
and  the  plaintiff  alleges  the  affirmativ^e,  then  the  assise 
shall  stand  over  until  it  be  determined  in  court  Chris- 
tian whether  he  ever  married  her  or  not.     The  mode 


I,  *133  5.]  INTO  JURIES.  275 

of  proceeding  in  such  cases  shall  be  described  in  treat- 
ing of  exceptions  in  the  Plea  of  Right. 

13.  The  assises  are  sometimes  also  turned  into  juries 
on  account  of  trespass,  as  where  any  one  desires  to  use 
the  soil  of  another  against  the  consent  of  the  owner. 
And  if  any  parcener  or  other  would  make  severance  of 
what  is  common  against  the  will  of  the  commoners,  or 
if  any  commoner  commits  excess  by  taking  more  than 
his  due,  the  act  amounts  to  a  disseisin  ;  and  yet  it  may 
be  a  trespass  according  to  the  distinction,  as  where  he 
does  not  claim  any  freehold  ;  and  then  the  assise  shall 
cease  and  be  turned  into  a  jury  to  inquire  of  the  trespass 
and  damages.  But  because  one  cannot  in  such  case 
immediately  discover  the  intention  of  the  trespasser, 
the  plaintiff  acts  prudently  if  he  proceeds  by  this  assise. 
And  if  the  act  be  done  a  second  time,  then  the  assise 
holds,  so  that  the  plaintiff  may  recover  his  peaceable 
seisin.  *If  it  be  done  a  third  time,  the  penalty  of 
redisseisin  shall  be  incurred.  If  the  disseisor  claims 
a  freehold,  upon  this  the  assise  shall  take  place  ; 
and  if  the  assise  say  that  he  has  a  freehold  as  a  com- 
moner and  not  in  severalty,  let  him  be  adjudged  to 
have  the  same  seisin  as  he  had  before,  and  be  punished 
as  a  disseisor  for  the  excess. 

14.  But  in  the  case  of  common  tenements  where 
disseisins  are  made  secretly  and  are  begun  by  little 
and  little,  it  is  expedient  to  take  pledges  of  the  tres- 
passers, and  to  impound  the  beasts,  if  any  do  damage 
in  the  commons  or  surcharge  them  with  cattle,  so  that 
upon  such  seizures  satisfaction  may  be  made  by  the 


276  BPJTTON.  [I,  *134. 

award  of  neighbours.  And  if  any  one  claims  a  free- 
hold, the  owner  will  act  wisely,  in  the  first  place,  if  he 
keeps  hira  out,  so  that  he  may  not  do  am-  disseisin  ; 
and  if  he  cannot  be  prevented,  then  this  assise  takes 
place. 

15.  So  likewise  for  trespass  by  waste  and  destruc- 
tion, and  also  for  excessive  distress.  For  excess  in 
distraining  sometimes  breeds  disseisin,  and  sometimes 
trespass  ;  disseisin,  where  any  one  distrains  another, 
whereby  husbandry  is  disturbed,  whereas  there  is  no 
occasion  for  the  distress  ;  trespass,  where  one  distrains 
the  tenant  of  the  tenant  instead  of  the  mesne  tenant, 
the  mesne  being  of  sufficient  ability.  So  if  the  de- 
mesnes are  distrained  when  the  villenages  are  suffi- 
cient ;  or  the  distress  is  by  immovables  where  there 
are  movables  enough  to  be  distrained,  *or  within  the 
house  when  enough  may  be  found  out  of  doors,  or  by 
beasts  of  the  plough  where  there  are  enough  of  other 
beasts  not  used  for  labour,  or  by  apparel  or  riding-horse 
■or  vessel  where  the  other  chattels  may  be  distrained, 
or  if  the  distress  taken  be  in  excess,  as  twenty  pounds 
for  twenty  shillings,  or  if  the  <listress  be  driven  out  of 
the  county  or  out  of  the  fee.  And  according  as  it  shall 
be  found  to  be  disseisin  or  trespass,  the  assise  is  held 
as  an  assise  or  is  turned  into  a  jury  to  inquire  of  the 
trespass.  There  are  more  exceptions  that  cannot  all 
be  particularly  mentioned  here,  some  of  which  hold  in 
other  pleas,  as  will  further  appear  in  treating  of  chal- 
lenges of  jurors. 


I,  *134  5.]  OF  CtlALLENGE  OF  JUROKS.        277 


CHAPTER  XXI. 

Of  tJie  challenge  of  jurors^  and  of  the  trial  of  the  assise. 

1.  When  the  parties  have  pleaded  to  an  assise  or  to 
a  simple  jury  upon  any  exception,  the  day  may  be  de- 
layed many  ways,  as  for  default  of  jurors.  Or  if  a 
sufficient  number  of  jurors  appear,  yet  some  may  be 
removable  by  the  just  challenge  of  the  parties. 

2.  Sometimes  the  day  is  delayed  on  account  of  the 
season ;  for  all  seasons  are  not  fit.  For  it  is  forbidden 
in  the  Canon  by  holy  Church  upon  pain  of  excommu- 
nication, that  from  Septuagesima  until  the  Octaves  of 
Easter,  and  from  the  beginning  of  Advent  until  the 
Octaves  of  *the  Epiphany,  and  on  Ember  days,  and  on 
the  days  of  the  greater  litanies,  and  on  Rogation  days, 
and  in  the  week  of  Pentecost,  and  in  the  time  of  har- 
vest or  vintage,  which  last  from  St.  Margaret's  day 
until  fifteen  daj's  after  Michaelmas,  and  on  solemn  fes- 
tivals of  Saints,  no  one  shall  be  sworn  upon  the  holy 
Gospels,  or  hold  any  secular  plea,  or  make  any  sum- 
mons in  the  times  aforesaid,  so  that  all  these  seasons 
be  set  apart  for  prayer,  and  for  appeasing  of  quarrels 
and  reconciling  those  who  are  at  variance,  and  for 
gathering  the  fruits  of  the  earth  which  are  to  be  the 
food  of  man.  Nevertheless  the  bishops  and  prelates  of 
holy  Church   do  sometimes  grant  dispensations,  that 


278  BRITTOK  [I,  *135. 

assises  and  juries  be  taken  in  such  seasons  for  reason- 
able cause. 

3.  "When  the  day  cannot  be  put  off  on  account  of  the 
season  being  improper,  the  jurors  may  be  challenged, 
and  sufficient  and  reasonable  exceptions  alleged  why 
they  ought  not  to  be  sworn  or  be  in  verdict  against  the 
party.  For  the  same  objections  lie  against  juroi  s  tak- 
ing the  oath  as  against  a  suspected  witness  giving  his 
testimony,  inasmuch  as  no  one  who  has  been  once  con- 
victed of  perjury  ought  to  be  sworn,  for  such  are  held 
to  have  forfeited  their  free  law,  so  as  not  to  be  cred- 
ited upon  any  oath  which  they  take.  Nor  ought  those 
to  be  sworn  who  have  suffered  judgment  of  life  and 
limb,  or  punishment  of  pillory  or  tumbrell ;  nor  those 
who  want  discretion  ;  *nor  excommunicated  persons ; 
nor  lepers  removed  from  society  :  nor  priests  or  clerks 
within  hol}^  orders;  nor  women;  nor  such  as  dwell 
away  from  the  neighbourhood ;  nor  those  who  are 
above  seventy  3'ears  of  age ;  nor  allies  in  blood  ;  nor 
such  as  can  claim  any  right  in  the  tenement ;  nor  vil- 
lains ;  nor  persons  indicted  or  appealed  of  felony  ;  nor 
those  of  the  household  of  any  of  the  parties ;  nor  those 
who  are  liable  to  be  distrained  bj'  either  of  the  parties  ! 
nor  their  lords,  or  counsellors,  or  accountants. 

4.  When  the  parties  have  agreed  upon  the  jury,  then 
let  the  first  juror,  touching  the  holy  Gospels,  swear 
after  this  manner.  '  Hear  this,  ye  Justices,  that  I  will 
speak  the  truth  of  this  assise,'  (if  the  assise  is  to  be 
taken  in  manner  of  an  assise  and  not  as  a  jury,)  '  of 
the  tenement  of  which   I   have  had  the  view  bv  the 


I,  *135  h.]  OF  CHALLE^'GE  OF  JUROES.        279 

king's  precept ; '  or  thus :  '  of  the  tenement  whereout 
such  rent  is  said  to  arise ; '  or  thus :  '  of  the  pasture 
and  of  the  tenement,'  or  '  of  the  common,  whereof  I 
have  had  the  view.'  Thus  the  words  of  the  oath  must 
be  varied  according  to  the  form  of  the  writ  and  dec- 
laration ;  and  if  the  plaint  be  made  of  nusance,  then 
it  shall  be  said  thus :  '  of  the  nusance  and  of  the  tene- 
ment  to  which  the  nusance  is  said  to  have  been  com- 
mitted ; '  or  thus :  '  of  the  wall,  or  pond,  and  of  the 
tenement,'  without  adding  '  \vhereof  I  have  had  the 
view.'  Then  it  continues  thus  :  '  and  I  will  not  fail  for 
anything  to  speak  the  truth,  so  help  me  God  and  his 
Saints.'  Then  let  the  rest  swear  thus :  '  The  same  oath 
which  such  a  one  hath  thus  sworn,  I  for  my  part  will 
keep,  so  help  me  God  and  the  Saints.'  Then  let  the 
•Gospels  be  kissed  with  all  reverence  as  *our  faith  and 
salvation.  If  several  assises  are  to  be  taken  under  one 
oath,  then  it  shall  be  said :  '  of  the  assises  and  of  the 
tenements  whereof  I  have  had  the  view  ; '  or  thus  :  '  of 
all  assises,  and  of  those  tenements  whereout  such  rent 
is  supposed  to  arise  ; '  or  thus:  'of  those  tenements, 
and  of  the  common  of  pasture,  or  turbarj',  or  other, 
and  of  the  tenements  to  which  it  is  said  they  ought  to 
belong,  whereof  I  have  had  the  view ; '  or  thus :  '  of 
this  assise,  and  of  the  corrody,  and  of  the  tenement,' 
and  so  of  others.  And  in  the  other  assises  of  mort- 
dancester  and  darrein  presentment  the  oath  shall  be 
taken  in  the  same  manner. 

5.  When  twelve  are  sworn,  and  their  names  enrolled, 
then  let  the  writ  be  read  to  them  by  the  clerk  pro- 


280  BKITTON.  [I,  *136. 

thonotary,  who  shall  address  them  in  this  manner : 
'  You  shall  say  by  the  oath  you  have  taken  whether 
such  a  one  wrongfully  and  without  judgment  has  dis- 
seised the  plaintiff  of  his  freehold  in  such  a  vill  within 
the  terra,  or  not.'  The  Justice  also  shall  straightway 
rehearse  the  substance  of  the  plaint  thus  :  '  John,  who 
is  present  here,  complains  of  Peter  that  he  has  wrong- 
fully and  without  judgment  disseised  him  of  his  free- 
hold in  such  a  vill,  whereof  he  puts  in  his  view  ten 
acres  of  land  (or  more  or  less),  with  the  appurtenances ; ' 
and  then  let  him  mention  the  declaration  of  the  plaintiff 
and  the  allegations  of  the  defendant  for  the  informa- 
tion of  the  jurors. 

*6.  The  jurors  shall  immediately  Avithdraw  by  them- 
selves to  confer  together  ;  and  then  let  them  be  so  kept, 
that  none  of  them  speak  with  any  other  person  except 
the  jurors,  nor  any  other  person  with  them.  And  if 
any  do  so  maliciously,  and  be  found  guilty  thereof,  let 
him  be  punished  by  imprisonment  and  fine,  and  let  the 
jurors  be  amerced,  if  they  have  not  themselves  accused 
him.  Moreover  let  the  jurors  be  watched,  that  they 
do  not  give  warning  to  any  one,  by  motion  or  the  eye 
or  by  other  sign,  against  which  of  the  parties  they 
intend  to  pronounce  their  verdict;  and  whosoever  shall 
do  so,  and  be  found  guilty  thereof,  shall  be  amerciable 
or  otherwise  punishable  according  to  the  mischief 
which  may  arise. 

7.  If  the  jurors  cannot  agree,  let  others  be  added  to 
the  majority  of  the  jur}'^,  if  the  parties  consent ;  and  if 
not,  let  the  judgment  be  against  him  who  refuses  to 


I,  *136  5.]  OF  JUDGMENTS.  281 

consent,  so  that  if  the  plaintiff  refuses,  the  seisin  shall 
remain  as  before,  and  he  be  in  mercy  ;  and  if  the  dis- 
seisor refuses,  he  shall  be  adjudged  as  undefended.  If 
the  jurors  cannot  pronounce  the  truth,  nor  return  any 
verdict  as  to  the  fact,  let  the  seisin  remain  in  the  tenant, 
and  let  the  plaintiff  be  in  mercy  for  not  having  proved 
the  case  made  by  his  plaint.  If  the  jury  refuse  to 
pronounce  any  verdict  in  the  matter  through  favour  to 
either  of  the  parties,  or  for  an}^  other  reason,  then  let 
them  be  shut  up  without  meat  or  drink  until  they 
have  sriven  their  verdict. 


*CHAPTEK  XXII. 

Of  Judgments. 

1.  "When  the  jurors  are  all  agreed,  let  them  immedi- 
ately go  to  the  bar  before  the  Justices,  and  declare 
their  verdict ;  and  according  to  their  verdict  let  judg- 
ment be  given  for  one  of  the  parties,  unless  any  doubt 
or  difficulty  arise,  which  may  make  it  necessary  to  ex- 
amine the  facts  by  the  jurors  or  others,  or  to  defer 
judgment  until  another  day,  so  that  the  Justices  may 
in  the  mean  time  be  advised  and  consult  what  is  best 
to  do  therein.  Where  the  Justices  however  are  doubt- 
ful about  the  verdict,  and  the  jurors  have  not  been 
sufficiently  examined,  or  have  been  too  hasty  in  their 
judgment  on  account  of  some  word  or  sentence  which 
might  have  a  double  intendment,  in  such  case  a  certifi- 
cation may  be  taken  by  the  same  or  other  Justices. 


282  BRITTOK  [I,  *137. 

But  it  is  better  and  safer  for  the  Justices  thoroughly 
to  examine  the  reasons  of  the  jurors  so  that  they  may 
give  a  good  and  sound  judgment,  and  that  no  error 
may  be  found  either  in  their  office  or  in  the  proceed- 
ings. 

2.  "When  the  jurors  have  declared  their  verdict  upon 
the  substance  of  the  assise,  or  upon  any  exception,  and 
such  verdict  is  given  against  the  plaintiff,  then  let  it 
be  awarded  that  the  tenant  and  the  others  named  in 
the  writ  go  quit  of  that  assise  without  day,  and  that 
the  plaintiff  take  nothing  by  his  writ,  but  be  in  *our 
mercy  for  his  false  plaint.  Nevertheless  his  pledges  to 
prosecute  shall  not  in  such  case  be  amerciable,  inas- 
much as  the  plaintiff  has  prosecuted  his  suit  to  the  end, 

3.  When  the  assise  is  taken  after  the  manner  of  an 
assise,  regard  must  be  had  to  the  (juantity  and  quality 
of  the  plaint,  and  how  much  the  plaintiff  has  put  in 
his  view  and  set  forth  in  his  plaint ;  since  the  oath  of 
tlie  jurors  does  not  extend  to  that  which  he  has  not 
put  in  his  plaint.  And  if  the  Justice  awards  to  the 
plaintiff  more  than  he  has  put  in  his  plaint,  or  if  the 
jurors  give  iiim  seisin  of  more  than  he  has  ])ut  in  his 
view,  they  commit  a  manifest  disseisin  on  the  tenant :  ^ 
as  does  the  sheriff  also,  who  puts  in  execution  the  com- 
mand of  the  judge,  because  in  such  a  case,  or  in  any 

1  '  Ex  hoc  nota,  that  the  plaintiff's  demand  is  the  Justice's 
warrant,  and  the  foundation  of  the  judgment.  Wherefore  if  the 
judgment  is  given  upon  a  demand  other  than  that  which  the 
plaintiff  has  truly  made,  wliether  more  or  less,  the  judgment  is 
false.'    Note  in  MS.  N. 


I,  *137  h.]  OF  JUDGMENTS.  283 

•other  where  the  Justice's  jurisdiction  does  not  extend, 
no  bailiff  ought  to  obey  hira  in  executing  his  commands. 
The  phiintitf  is  in  a  like  position  who  receives  such  de- 
fective seisin.  So  likewise  where  the  plaintiff  en- 
croaches  upon  the  disseisor  more  than  right  under 
colour  of  judgment.  And  if  the  plaintiff  puts  too 
much  in  his  view,  he  is  amerciable  for  his  excessive 
-demand. 

4.  If  the  verdict  be  given  for  the  plaintiff,  it  shall 
be  forthwith  inquired  who  were  present  at  the  disseisin, 
iind  the  manner  of  the  fact,  whether  the  disseisin  was 
committed  with  banner  displayed,  or  horses  harnessed, 
or  bv  other  force  of  arms,  and  by  what  force,  and  by 
what  arms.  And  it  should  be  understood  that  there 
are  divers  sorts  of  arms  and  divers  kinds  of  force.  For 
all  those  are  said  to  be  armed  who  carrv  anything 
wherewith  they  may  do  hurt  to  people  or  overpower 
others,  as  w^ell  as  bows,  arrows,  knives,  hatchets,  and 
staves,  as  hauberks,  lances,  and  swords.  So  there  is 
armed  force,  and  simple  force  without  arms,  as  by 
multitude  of  people. 

*5.  And  because  many  a  man,  having  no  right,  gains 
seisin  by  such  force,  upon  which  the  tenant  who  has  a 
Tight  to  retain  and  abide  in  possession  leaves  the  tene- 
ment to  avoid  further  mischief,  and  forasmuch  as  such 
ways  of  obtaining  seisin  are  in  part  against  our  peace, 
we  will  that  the  Justices  inquire,  who  came  in  the  force 
along  with  the  principal  disseisor,  so  that  the  disseisor 
and  those  of  the  force  be  punished  by  imprisonment 
and  fine  if  they  are  convicted  of  a  disseisin  effected  by 


2S4  BKITTOK  [I,  *138. 

force,  and  if  by  arms,  then  ransomed.  And  if  any  be 
convicted  of  a  disseisin  done  under  colour  of  right,  and 
without  breach  of  the  peace,  as  by  a  simple  disseisin 
done  in  the  daytime,  without  force  and  arms,  with  a 
white  wand  in  sign  of  peace  ;  in  such  case  let  the  dis- 
seisor be  amerciable  by  their  peers,  and  also  make  sat- 
isfaction to  the  plaintiff  in  damages.  The  penalty 
above  mentioned,  which  is  to  be  imposed  upon  disseisors 
who  eject  people  from  their  freehold,  whether  by  force 
or  arms,  or,  as  it  should  be  done,  after  a  peaceable 
manner,  shall  also  be  imposed  upon  disseisors  who 
with  force  or  arms,  or  simply  Avithout  arms,  keep  a 
man  out  of  his  freehold  when  he  expects  to  enter 
peaceably  therein. 

6.  Sometimes  it  happens  in  this  assise  that  the  dissei- 
sors shelter  themselves  by  us,  and  say  that  they  neither 
have  or  claim  anything  in  the  tenement,  *but  whatso- 
ever they  did  was  done  in  our  name,  and  that  without 
us  the  assise  cannot  pass,  nor  the  fact  be  brought  in 
judgment  without  prejudice  to  us  ;  in  which  cases  we 
will  not  that  under  such  pretext  the  assise  shall  stand 
over  ;  but  if  the  disseisin  be  clear  and  manifest,  let  it 
be  adjudged  for  the  plaintiff,  and  let  the  common  law 
take  its  course  against  the  tenant  as  against  any  other 
person  ;  and  if  any  doubt  be  perceived,  let  judgment 
be  respited  to  another  day,  and  let  the  proceedings  in 
the  meantime  be  laid  before  us,  so  that  judgment  may 
be  ordained  by  our  advice. 

7.  And  because  it  often  happens  that  the  tenant  has 
not  committed  any  disseisin  or  wrong,  but  has  possibly 


1,  *138  h.]  OF  JUDGMENTS.  285 

purchased  the  tenement  by  feoflP ment  of  the  disseisor  ; 
in  such  case  it  is  reasonable  that  the  tenant  should  be 
iible  to  vouch  to  warranty  the  disseisor,  so  that  he 
who  has  done  no  wrong  may  not  be  punished  for  the 
trespass  of  another,  without  recovering  to  the  value 
from  his  feoffor  ;  and  then  let  the  same  proceeding 
be  observed  as  shall  be  mentioned  concerning  warranties 
in  the  assise  of  Mortdancester.  If  two  or  more  assises 
are  prosecuted  by  several  persons  against  one,  the  last 
seisin  shall  be  first  tried,  and  so  backwards  to  the  first 
disseisin.^ 

*8.  Afterwards  let  it  be  inquired  of  the  jurors  what 
damages  the  disseisors  and  the  tenants  have  committed 
in  houses,  woods,  gardens,  warrens,  vivaries,  parks, 
rabbit-warrens,  and  elsewhere  ;  and  how  much  has  or 
might  have  been  by  good  husbandry  received  in  the 

1  '  A  is  disseised  by  B.  B  continues  seised,  and  is  ejected 
by  C.  C  is  ousted  by  D,  \vfio  enfeoffs  E  ;  A  brings  assise 
against  B  and  E  ;  B  brings  assise  against  C  and  E  ;  C  against 
D  and  E.  Qucestio,  whether  E,  tenant,  ought  to  answer  to 
all  at  the  same  time,  or  if  not  to  all,  to  whom  first  ? 
Solutio  :  The  Justices  ex  officio  ought  to  inquire  of  the  last 
seisin  in  this  manner  :  '  Good  people  of  the  assize,  you  shall  tell 
us  by  3'our  oaths  which  of  these  three,  who  bring  assise  of  tlie 
same  tenement  against  the  same  tenant  E,  was  last  seised, 
whether  A  or  B  or  C  And  if  they  say  C,  and  before  him  B,  and 
before  him  A,  then  the  judgment  shall  be  thus  :  '  For  as  much 
as  we  find  that  B  hath  disseised  A,  and  C  hath  disseised  B,  and 
D  hath  disseised  C  ;  therefore  this  Court  doth  award  that  B  and 
C,  being  disseisors,  do  take  nothing  by  their  writs,  but  be 
amerced,  and  that  A  do  recover  his  seisin  against  E  by  your 
views.'     (Note  in  MS.  N.)    Compare  Bracton,  177,  178. 


286  BRITTOK  [I,  *139. 

meantime  of  all  kinds  of  issues  of  the  tenement,  and 
what  profit  in  value  the  plaintiff  might  have  had  if  he 
had  not  been  disseised  ;  and  it  shall  be  awarded  ac- 
cordingly that  the  plaintiff  recover  his  full  damages. 
And  if  the  Justices  perceive  that  the  jurors  are  dis- 
posed to  relieve  the  disseisor  by  assessing  light  damages, 
because  on  the  other  hand  they  have  made  him  suffer 
by  the  loss  of  the  tenement,  let  the  lands  be  extended 
by  the  same  jurors  at  their  true  value  in  the  presence 
of  the  parties,  if  they  will  be  there  ;  and  according  to 
the  yearly  value  let  the  damages  be  taxed  by  the  Jus- 
tices, single  or  double,  according  to  the  ordinance  of  our 
statutes,  and  according  as  the  assise  shall  have  been 
falsely  defended  or  not. 

9.  If  the  disseisors  have  taken  away  or  detained  from 
the  plaintiff  any  vessel,  robe,  or  chattel,  it  shall  be  in 
the  election  of  the  plaintiff  either  to  sue  for  his  chattels 
by  appeal  of  robbery  or  trespass,  or  to  have  them  taxed 
with  the  rest  of  his  damages.  The  damages  for  wild 
animals  taken  in  parks  or  chases,  and  for  fish  taken  out 
of  ponds,  shall  be  assessed  by  the  jurors  ;  for  in  such 
cases  the  penalty  of  three  years' imprisonment  does  not 
lie,  *nor  in  any  case  except  where  judgment  of  felony 
can  be  given,  if  the  offender  is  in  peril  of  life  and  limb. 
If  houses  have  been  burnt  or  other  damage  has  happened 
in  the  meantime,  although  it  was  by  an  unforeseen  ac- 
cident, without  any  human  malice,  yet  the  disseisor  is 
not  thereby  discharged  from  making  satisfaction  as 
well  for  the  chattels  of  the  disseisee  as  for  the  goods  of 
others  wrongfully  detained  by  the  disseisor. 


1,  *139  h.]      OF  APPURTENANCES.  287 


CHAPTER  XXIII. 
Of  Appurtenances. 

1,  Having  spoken  above  of  disseisins  of  things  corpo- 
real, we  must  now  speak  of  disseisors  of  things  incorpo- 
real, as  of  appurtenances.  For  although  a  tenement  be 
freehold  according  to  the  definition  of  it,  yet  in  respect 
of  the  services  wherewith  it  is  charged  another  tenement 
may  be  more  free  ;  and  yet  both  are  free  tenements. 
Wherefore  if  one  tenement  be  charged  with  any  serv- 
ice to  another  tenement,  such  service  is  properly  an  ap- 
purtenance to  the  tenement  to  which  the  service  is  due, 
which  appurtenances  no  one  ought  to  disseise  another, 
and  if  any  one  does  so,  the  disseisee  may  be  aided  by 
this  assise,  or  by  our  writ  to  the  sheriff,  as  shall  be 
hereafter  mentioned. 

2.  It  should  be  known  tliat  some  appurtenances  are 
free,  others  servile  ;  free  as  in  respect  of  the  *persons 
and  tenements  to  which  they  are  due,  servile  as  regards 
the  tenements  from  which  they  issue,^  and  such  servi- 
tudes are  always  due  from  the  tenement  of  another  ; 

1  Unless  the  text  is  corrupt,  the  above  sentence  appears  to  be 
a  mistaken  rendering  of  the  parallel  passage  in  Bracton  or  Fleta, 
when  the  sense  is,  that  the  same  things  which  ai'e  rights  or  lib- 
erties (jura  sive  libertates)  in  relation  to  the  dominant,  are  servi- 
tudes (servitutes)  in  relation  to  the  servient  tenement.  This 
observation  is  found  subsequently  in  Britton,  post,  s.  8,  p.  292. 


288  BKITTOX.  [T,  *140. 

although  no  one  can  subject  the  soil  of  any  one  to  ser- 
vitude but  his  own.  And  in  this  way  some  tenements 
are  more  free  than  others  ;  for  that  soil  is  more  free 
which  owes  nothing  to  the  soil  of  its  neighbour,  than 
that  which  is  bound  to  a  servitude. 

3.  A  person  may  subject  his  tenement  to  a  servitude 
in  several  ways,  as  by  granting  that  another,  who  has 
nothing  therein,  shall  have  a  right  of  pasturing  or 
mowing,  or  fishing,  or  of  driving  cattle,  or  of  way,  or 
of  carrying  therein,  or  by  other  servitudes  which  may 
be  infinite  and  numberless,  according  as  they  are  simple 
or  compounded  of  other  appurtenances.  For  there  are 
appurtenances,  and  also  appurtenances  of  appurtenances. 
For  to  a  watermill,  the  course  of  water  is  one  of  the 
appurtenances,  and  way  is  another,  to  which  cleansing 
and  repairing  are  appurtenant,  and  are  therefore 
appurtenances  to  appurtenances  ;  and  if  any  one 
be  disturbed  thereof,  remedy  may  be  had  by  this 
assise. 

4.  And  whether  the  servitude  be  due  from  one  soil 
to  that  of  another  or  to  the  person  of  another  by  the 
consent  of  the  true  owners,  for  a  certain  service  or  by 
reason  of  vicinage,  they  are  not  bound  to  the  soil  only, 
or  to  the  person  only,  but  to  the  certain  soil  of  another, 
and  also  to  the  owner  of  the  soil,  whosoever  the  owner 
may  be.  Hence  it  follows,  that  whosoever  purchases 
the  soil  *purchases  the  appurtenances  due  to  the  soil, 
unless  hindered  by  special  exception.  Some  of  w^hich 
servitudes  are  ordained  and  established  by  those  who 
have  power  to   charge  the  soil,  and  others  by  long 


I,  *140  h.-]      OF  APPURTENANCES.  289 

usage  on  the  one  side,  and  by  sufferance  and  negli- 
gence on  the  other.  For  in  such  a  case  it  is  presumed 
that  sufferance  with  knowledge  amounts  by  prescrip- 
tion of  time  to  consent.  For  although  a  tenement  be 
not  burthened  with  any  kind  of  servitude  by  appoint- 
ment or  other  good  title  from  the  owner  of  the  soil, 
yet  if  the  neighbour  has  taken  by  encroachment  upon 
the  soil  of  his  neighbour  any  servitude,  as  the  depastur- 
ing of  the  herbage  on  his  neighbour's  soil,  and  the 
hindering  of  the  owner  from  pasturing,  and  has  been 
seised  thereof,  claiming  freehold,  without  force  and 
without  asking  leave  of  the  owner  of  the  soil,  and  this 
continually,  and  not  privately  by  stealth,  but  boldly 
and  openly,  he  can  never  be  ejected  or  disturbed  with- 
out being  disseised.  And  if  he  to  whom  the  wrong  is 
•done  by  his  own  consent,  disseise  such  purchasor  by 
force  and  not  by  judgment,  that  presumption  shall  be 
so  far  prejudicial  to  him,  that  if  the  ejected  recover 
his  seisin  by  judgment  of  our  court,  he  shall  not  after- 
wards eject  him  but  by  plea  in  the  right  by  writ  of 
Quo  Jure.  But  by  a  precarious  or  secret  disseisin,  as 
in  the  absence  of  the  owner  of  the  soil,  *although  the 
bailiffs  of  such  owner  be  present  or  consenting,  a  free- 
hold never  accrues  to  such  purchasers. 

5.  Sometimes  the  soil  is  subject  to  a  servitude  by 
law,  although  not  by  any  man's  appointment,  or  by 
the  establishment  of  peaceable  seisin,  as,  for  example, 
to  the  obligation  that  no  one  shall  do  anything  in  his 
own  soil  that  may  be  a  grievance  or  annoyance  to  his 
neighbour  ;  of  which  annoyances  there  are  various 
19 


290  BPJTTON.  [I,  ^Ul. 

sorts ;  for  some  annoyances  may  be  lawful,  and  in 
particular  such  as  no  neighbour  can  forbid  another  to 
do,  as  to  erect  a  mill  on  his  own  soil ;  and  some  may 
be  tortious,  as  if  any  one  do  in  his  own  soil  a  thing 
which  is  a  grievance  to  his  neighbour,  and  which  he 
bv  law  may  be  prohibited  from  doing.  For  the  law 
forbids  any  one  to  raise  or  heighten  his  pond  so  as  to 
drown  the  tenement  of  his  neighbour,  or  to  make  a 
ditch  in  his  own  soil  Avhereby  the  water  is-  diverted 
from  his  neighbour,  or  whereby  it  is  hindered  from 
remaining  in  its  ancient  course,  or  to  do  any  act  in  his 
own  soil  whereb}^  his  neighbour  may  be  less  able  to 
use  his  seisin  of  the  servitude  wherewith  the  soil  is 
bound  and  cliarged  to  him,  or  to  use  his  peaceable  seisin 
where  and  when  he  ought,  in  all  such  ways  as  he  was 
wont  and  ought  to  use  it,  in  number,  kind,  quality,  and 
quantit}'. 

6.  For  there  is  secret  as  well  as  open  disseisin ;  for- 
asmuch as  he  is  equally  disseised  who  is  not  suffered 
to  have  his  driftway  over  ^another's  soil  which  is  sub- 
ject thereto,  or  is  not  permitted  to  repair  and  put  in 
order  the  way,  as  if  the  way  was  entirely  destroyed, 
or  the  whole  soil  turned  into  a  fishpond  ;  and  he  who 
is  hindered  from  cleaning  out  the  watercourse  of  his 
mill  is  as  much  disseised  as  if  the  whole  watercourse 
Avere  disturbed  or  diverted  ;  for  to  a  right  of  water- 
course the  right  of  cleansing  is  appurtenant,  as  the 
right  of  repairing  is  appurtenant  to  a  right  of  way. 
And  he  is  as  much  guilty  of  disseisin  who  partly  hinders 
another's  seisin,  as  if  he  disturbed  him  of  the  whole. 


I,  *U1  b.]      OF  APPURTENANCES.  291 

And  if  an}'  one  has  common  in  another's  soil  with  free 
ingress  and  egress  by  a  certain  place,  if  the  owner  of 
the  soil  commits  disturbance  by  making  a  hedge,  wall, 
or  ditch,  whereby  the  ingress  and  egress  is  less  easy 
than  before,  inasmuch  as  he  must  drive  his  cattle  a 
long  way  round  where  he  could  formerly  drive  them 
straight,  these  and  like  acts  may  be  treated  as  disseisins, 
unless  the  nusances  are  redressed  by  presentment  in 
the  sheriff's  tourn,  or  in  view  of  frankpledge.  So  in 
this  case, — where  any  one  has  a  right  of  pasture  granted 
to  him  for  his  cattle  at  whatsoever  times  he  pleases, 
and  he  is  afterwards  disturbed  so  that  he  can  put  them 
in  only  at  a  certain  time,  or  when  he  has  a  right  to 
pasture  throughout  the  whole  and  he  is  hindered  from 
having  it  except  in  certain  places,  or  where  he  ought 
to  have  pasture  for  all  manner  of  beasts  and  he  is  al. 
lowed  to  have  it  only  for  one  kind  of  beasts,  or  where 
he  ought  to  have  pasture  for  a  certain  number  and  he 
is  suffered  to  have  it  only  for  a  less  number  ;  or  if  it 
is  granted  to  any  one  that  he  may  draw  away  water 
at  his  pleasure  from  another's  well  and  he  is  disturbed 
*as  above  mentioned  concerning  pasture, — in  all  these 
cases  this  assise  is  applicable,  as  much  as  if  complete 
disturbance  had  been  made  of  the  whole. 

7.  In  all  cases  where  this  assise  lies  for  the  grantee 
of  such  a  franchise,  it  lies  also  for  the  owner  of  the 
soil  if  he  to  whom  the  franchise  is  granted  uses  his 
seisin  in  a  different  or  more  extensive  manner  than  he 
ouirht.  Nevertheless  it  is  well  to  hinder  such  excesses, 
so  far  as  possible,  at  the  beginning,  so   that  the  dis- 


292  BKITTON.  [I,  *142. 

seisors  may  not  avail  themselves  of  peaceable  seisin  as 
title  of  freehold. 

8.  The  servitudes  to  which  a  man  maj^  subject  his 
land  are  innumerable ;  and  such  rights  and  franchises 
are  purchased  in  the  same  manner  and  for  the  like 
causes  as  corporeal  things.  But  for  the  purchase  of 
these  franchises  the  same  formality  of  giving  seisin  is 
not  requisite,  as  in  purchases  of  corporeal  things.  For 
if  the  parties  are  agreed,  the  delivery  of  the  deeds 
together  with  the  view  of  the  tenements  in  the  presence 
of  neighbours  is  sufficient ;  and  if  the  purchaser  be 
thereafter  hindered  from  enjoying  the  franchise  granted 
to  him  by  one  who  had  power  to  grant  it,  he  shall  be 
helped  by  this  assise,  although  he  has  not  taken  any 
esplees.  Thus,  where  pasture  in  another's  soil  is 
granted  in  fee  or  for  term  *of  life,  and  the  writings  are 
delivered,  and  the  soil  assigned  by  view  of  neighbours, 
if  the  purchaser,  whether  the  next  day  or  a  long  while 
lifter,  has  a  mind  to  feed  his  cattle  on  the  pasture  of 
that  soil  according  to  the  tenor  of  his  purchase,  and  is 
hindered  by  the  donor  or  another,  he  shall  be  aided  by 
this  assise,  although  he  never  enjoyed  the  pasture.  For 
such  franchises  are  so  simple  that  they  do  not  admit 
of  delivery  of  seisin,  as  gross,  coarse,  and  material 
things  do.  It  should  be  understood  that  such  purchases, 
in  relation  to  the  purchaser  and  also  to  the  tenement 
to  which  they  are  assigned  to  belong,  are  franchises 
and  rights,  and  with  regard  to  the  owner  of  the  soil 
which  is  charged,  and  to  the  tenement  bound  thereto, 
such  purchases  are  servitudes. 


I,  *142  b.-]      OF  APPUKTENANCES.  293 

9.  But  although  the  purchaser  is  thus  in  seisin,  this 
does  not  prove  that  such  seisin  is  sufficient  for  ever. 
For  until  he  has  taken  other  seisin  of  the  pasture,  he 
cannot  alien  the  same ;  as  in  the  like  case  of  the  ad- 
vowson  of  a  church,  which  cannot  be  granted  before 
the  donor  has  been  seised  of  the  advovvson  by  presen- 
tation. The  purchaser  may  also  be  barred  of  his  seisin, 
if  the  soil  be  aliened  to  a  stranger  before  any  other 
seisin  was  taken  thereof  beyond  the  bare  delivery  of 
the  writings.  Therefore  it  is  proper  to  put  in  the 
beasts  forthwith.  *For  the  putting  in  of  one  beast  is  a 
sufficient  seisin  for  all  the  rest  which  he  might  have 
put  in,  although  the  beast  be  borrowed  by  the  pur- 
chaser of  some  other  person,  so  it  be  not  the  donor, 
unless  it  be  specially  excepted  in  the  gift  that  he  shall 
depasture  his  own  beasts  onl}^,  and  not  those  of  others  ; 
and  if  he  omits  doing  this  he  may  lose  his  purchase 
by  his  negligence,  since  it  is  presumed  that  he  did  not 
intend  to  take  any  seisin, 

10.  If  the  purchaser  has  neither  beast  of  his  own 
nor  can  borrow  another  for  the  purpose,  then  it  is 
sufficient  to  hinder  the  owner  of  the  soil  as  much  as 
he  can  from  ploughing  and  sowing,  so  that  by  such 
molestation  he  retains  a  kind  of  seisin,  and  may  put  in 
his  beasts  whensoever  he  chooses  to  send  them, 
although  the  land  be  ploughed  and  sown,  or  although 
the  corn  be  ripe.  But  if  he  has  been  so  negligent  as 
to  suffer  the  owner  of  the  soil  to  plough  and  sow  with- 
out any  dispute,  and  then  takes  seisin  for  the  first  time 
while  the  corn  is  growing  by  feeding  his  beasts  in  the 


294  BRITTON.  [I.  *14S. 

corn,  in  such  case  he  commits  a  disseisin  against  the 
owner  of  the  soil ;  and  if  the  owner  recovers  by  this 
assise,  the  purchaser  shall  be  barred  of  his  pasture  for 
ever  after  by  his  negligence  in  too  long  delaying  the 
taking  of  seisin.  But  some  one  may  say  on  the  other 
hand  thus,  Although  you  till  and  sow  my  land  without 
my  leave  and  I  knowingly  suffer  it,  yet  no  wrong  is 
tlone  me  until  you  carry  the  produce  away  ;  how  then 
is  my  negligence  and  the  sufferance  more  dangerous  in 
the  one  case  than  in  the  other  ?  In  answer  to  this, 
it  is  to  be  observed  that  there  is  a  negligent  suflFerance 
and  a  sufferable  caution.  *For  by  suffering  lands  to 
be  ploughed  the  lands  are  improved,  and  by  sowing 
also ;  and  in  such  case  the  sufferance  is  good  and  pru- 
dent to  permit  a  man  to  sow  another's  land ;  and  it  is 
Tio  disseisin  to  the  owner  of  the  soil,  since  nothing  has 
been  done  against  his  consent :  but  where  no  profit 
accrues  to  him  by  the  sufferance,  but  on  the  contrary 
loss,  as  in  the  case  in  question,  then  it  is  negligent  suf- 
ferance ;  for  in  the  one  case  the  condition  of  him  who 
permits  the  ploughing  is  made  better,  and  in  the  other 
worse. 

11.  Some  enjoy  the  seisin  of  common  in  their  own 
right,  and  some  in  the  right  of  others.  And  as  a  guar- 
dian enjoys  the  seisin  of  common  in  the  name  of  the 
infant  under  age  whose  guardian  he  is,  so  likewise  the 
parson  of  a  church  enjoys  it  in  the  name  of  his  church. 
For  a  church  is  always  supposed  to  be  in  the  same 
state  as  an  infant  under  age,  by  reason  of  its  always 
being  under  the  guardianship  of  its  parson,  by  which 


I,  *143  h.]      OF  APPURTENANCES.  295 

guardians  churches  may  purchase  and  amend  their  es- 
tate, as  infants  may  by  their  guardians  ;  but  they  can- 
not assent  to  anything  to  their  damage.  Wherefore  if 
-any  church  is  seised  of  a  common,  although  the  parson 
dies,  yet  the  church  does  not  in  any  manner  lose  its 
seisin  of  its  common,  or  any  other  seisin,  any  more 
than  an  infant  under  age  does  by  the  change  of  his 
guardians,  by  which  change  his  estate  is  not  impaired 
or  altered  in  any  point.  *Therefore  every  parson  may 
Use  that  seisin  which  his  predecessor  left  to  the  church  ; 
and  if  he  be  disturbed  therein,  he  shall  recover  by 
this  assise.  But  if  the  predecessor  was  before«disturbed, 
or  if  the  church  was  disseised  in  the  time  of  its  avoid- 
ance, then  another  remedy  is  required,  as  by  our  writs 
of  entry,  or  of  Quod  jpermittat. 

12.  Forasmuch  as  there  are  several  kinds  of  servi- 
tudes, as  we  have  before  said,  and  the  most  important 
of  these  is  the  right  of  pasture  in  another's  soil,  we 
shall  therefore  first  treat  of  common  of  pasture. 


296  BKITTOK  [I,  *144. 


CHAPTER  XXIV. 

Of  Common  of  Pasture. 

1.  Common  is  a  general  name,  and  no  community 
can  be  so  restricted  but  that  it  be  understood  that  there 
are  at  least  two  or  more  parceners  to  whom  it  is  com- 
mon. And  it  properly  signifies  that  one  person  has  a 
riofht  to  common  with  another  in  another's  soil.  Pas- 
ture  likewise  is  a  general  name  for  herbage,  acorns, 
mast,  and  nuts,  and  for  leaves  and  flowers,  and  for  all 
things  comprised  under  the  name  of  pannage. 

2.  Purchases  of  common  may  be  large  or  limited,  as 
at  all  times,  or  only  at  certain  hours ;  and  2i%jper  my  et 
per  tout,  or  onlj'^  in  certain  places;  or  as  for  all  manner 
of  beasts,  or  only  for  certain  kinds.  Reasonable  pro- 
hibitions are  nevertheless  excepted  in  such  purchases, 
sometimes  expressly  and  sometimes  tacitly  ;  *for  none 
ought  to  common  in  respect  of  any  purchase  in  seasons 
of  reasonable  prohibition,  as  in  hay  time  or  harvest 
time ;  so  in  places  particularly  reserved  for  the  pasture 
of  lambs  or  calves,  oxen  or  cows,  no  more  than  within 
the  curtilage,  or  in  gardens,  orchards,  or  parks,  or  in 
demesnes,  which  the  lord  may  fence  in  or  enclose  at 
his  pleasure. 

3.  Common  is  acquired  several  ways ;  as  by  gift, 
where  one  gives  to  another  any  soil  with  common  ap- 


I,  *1U  b.]  OF  COMMON  OF  PASTUEE.  297 

purtenant ;  and  by  sale,  as  if  one  buy  common  in  an- 
other's soil,  so  that  for  ever  after  it  be  appurtenant  to 
his  own  soil,  although  the  two  soils  be  in  diiferent  feas- 
or different  baronies  or  counties,  so  long  as  they  are  ad- 
joining; by  vicinage  also,  as  if  one  neighbour  gives  com- 
mon to  another,  and  the  reverse  ;  or  by  long  sufferance 
without  other  title,  with  the  knowledge  and  consent 
of  the  owners  of  the  soil  ;for  neither  the  sufferance  nor 
consent  of  their  bailiffs  will  ever  give  title  of  freehold, 
nor  will  any  arbitrary  usurpation,  if  he  who  thus  ac- 
quired it  hath  not  continued  and  used  his  seisin  with 
the  knowledge  of  the  owners  ;  *yet  notwithstanding,  if 
any  one  having  no  right  but  only  recent  seisin  b}'  his 
own  abatement  be  ejected  by  another  who  has  less 
right,  he  w^ho  is  thus  ejected  from  his  posession  shall 
recover  such  estate  as  he  had  by  this  assise.  For  al- 
though he  has  no  right  to  be  thus  in  seisin,  yet  the 
disseisors  have  no  right  to  eject  him  from  his  seisin,, 
such  as  it  is.  But  if  he  in  whose  person  the  property 
is  vested  ejects  him  as  soon  as  he  knows  of  the  usurpa- 
tion, the  ejected  shall  never  recover  by  this  assise  by 
title  of  peaceable  continuance  in  seisin, 

4.  If  any  one  purchases  common  of  pasture  in  an- 
other's soil,  and  has  no  tenement  to  which  the  common 
may  belong,  this  is  not  properlv  a  purchase  of  common, 
but  a  hiring  of  the  pasture  or  herbage. 

5.  As  common  is  acquired  by  the  will  and  mutual 
agreement  of  the  donor  and  purchaser,  so  is  it  extin- 
guished and  destroyed  by  the  mutual  agreement  of  the 
parties  to  the  contrary,  so  that  the  assent  or  disassent  of 


BKITTON.  [I,  *145. 

one  is  of  no  avail  either  for  purchasing  common  or  for 
waiving  the  purchase,  unless  there  be  a  union  of  assents 
or  disassents  by  their  common  will.  And  as  common  is 
sometimes  purchased  by  long  sufferance,  so  it  is  lost  by 
long  negligence,  but  only  on  cases  where  seisin  has  been 
openly  enjoyed  with  the  knowledge  of  the  owners. 

6.  By  mutual  consent  also  that  may  become  several 
which  before  was  held  in  common.  For  as  land  which 
is  common  among  parceners  may  b}'  division  become 
several,  in  the  same  w^ay  any  tenement  of  Avhich  the 
pasture  is  ^common  may  be  divided  among  the  com- 
moners, to  be  held  in  severalty.  But  for  this  the  assent 
of  all  the  commoners  is  necessary.  And  when  they 
have  once  consented,  and  the  boundaries  are  fixed,  and 
every  one  knows  his  several,  no  dissent  afterwards  will 
avail. 

7.  Where  any  soil  is  charged  with  a  servitude,  the 
servitude  may  be  lessened,  restrained,  altered,  and 
limited,  and  in  the  same  manner  enlarged  and  increased, 
but  not  against  the  consent  of  the  donors  and  pur- 
chasers. For  if  any  one  should  do  it  against  their 
consent,  this  assise  w^ould  lie  for  him  whose  soil  it  was 
intended  to  burthen  with  more  than  was  right ;  or,  on 
the  other  hand,  the  remedy  may  belong  to  him  to  w^hom 
the  servitude  is  due,  where  less  is  performed  than  is 
right. 

8.  When  a  gift  is  to  be  made  of  a  common,  there 
must  be  a  transfer  of  it  from  one  person  to  another, 
and  from  one  tenement  to  another,  and  the  persons 
and  tenements  should  be  specified  on  both  parts,  as 


I,  *145  b.-]  OF  DISSEISIN  OF  COMMON.  299 

well  the  persons  of  the  purchasers  and  tlie  tenements 
for  which  the  common  is  purchased,  as  the  persons  of 
the  donors  and  the  tenements  which  are  to  be  charged 
with  the  common ;  for  it  is  a  general  rule  that  there 
can  be  no  common  without  soil,  that  is  to  say,  without 
soil  to  which  it  is  servient,  nor  without  soil  charged 
with  the  service. 


*CHAPTER  XXV. 

Of  the  Remedy  for  Disseisin  of  Common. 

1.  Those  who  are  ejected  or  disturbed  of  their  com- 
mon may  have  remed}^  by  our  writs,  when  they  shall 
be  unable  to  retain  or  peaceably  to  enjoy  their  seisin. 
The  forms  of  remedy  however  are  to  be  distinguished. 
P^or  according  to  the  diversities  of  the  cases  the  writs 
must  be  varied  ;  for  the  same  soil  may  be  charged  with 
several  servitudes  to  several  soils,  as  well  in  the  whole 
as  in  part :  and  this  may  be  true  in  divers  ways  ;  one 
Avay,  on  account  of  the  different  tenements  to  which 
the  servitudes  belong ;  another  way,  by  reason  of  the 
different  persons  to  Avhom  they  are  due ;  and  the  third 
way,  by  reason  of  a  diversity  both  of  the  persons  and 
of  the  tenements.  In  the  first  case  one  writ  is  suf- 
ficient, because  of  the  unitv  of  the  person  of  the  plain- 
tiff;  but  in  the  second  and  third  cases  there  are  divers 
rights,  and  of  divers  rights  there  may  be  divers  dis- 
seisins, and  for  divers  disseisins  there  must  be  divers 
writs. 


300  BRITTON.  [I,  *146. 

2.  But  if  there  be  a  unity  in  the  tenement  to  which 
the  servitude  is  due,  although  there  are  divers  persons, 
as  in  case  of  parceners  who  hokl  a  tenement  in  com- 
mon, in  such  case,  whether  there  be  one  plaintiff  or 
more,  there  need  be  only  one  writ,  and  that  by  reason 
of  the  unity  of  their  right,  although  they  are  divers 
persons,  and  on  account  of  the  unity  of  the  tenement, 
which  is  held  in  common.  *But  if  the  tenement  be 
divided  between  the  parceners,  and  any  one  of  them  be 
afterwards  disseised  of  common  belonging  to  his  part, 
to  such  case  separate  plaints  and  separate  writs  lie,  so 
that  each  parcener  shall  bring  a  separate  assise.  If  a 
parcener  is  disseised  of  his  common  by  one  of  his  co- 
parceners, the  disseisor  and  disseisee  only  are  to  be 
named  in  the  writ,  without  naming  the  other  parceners, 
whether  the  parceners  be  merely  neighbours  or  entitled 
as  one  heir, 

3.  When  we  have  thus  granted  our  writs  to  the 
plaintiffs,  let  them  be  forthwith  attached  by  pledges  ;  ^ 
and  let  jurors  be  chosen,  and  let  the  soil  and  place  of 
the  common  be  viewed,  as  well  as  the  tenement  to 
which  it  is  due,  so  that  the  jury  may  be  certified  of 
the  extent  and  boundaries  of  the  common,  and  for 
what  sort  of  cattle,  and  how  many,  and  of  all  the 
circumstances  as  to  which  they  w^ill  be  charged  by 
our  Justices. 

1  The  French  text  is  somewhat  obscure  ;  but  it  is  clear  from 
the  parallel  place  in  Bracton  that  the  pledges  spoken  of  aro 
pledges  to  prosecute.  The  expression  attachiato  brevi  occurs  in 
Fleta,  259. 


I,  *146  6.]  OF  DTSSETSTN  OF  COMMOX.  301 

4.  When  our  Justices  are  come  into  the  county,  and 
the  patent  has  been  read,  let  the  parties  be  immediately 
called  ;  and  if  the  phdntiff  does  not  appear,  or  cause 
himself  to  be  essoined,  whether  the  disseisor  be  present 
or  not,  in  every  plea,  it  shall  be  adjudged  that  the 
plaintiff  and  his  pledges  to  prosecute  be  in  mercy  ; 
whereby  the  writ  is  abated,  so  as  never  after  to  be  of 
service  to  the  plaintiff,  but  he  must  purchase  a  new 
writ.  *If  the  plaintiff  be  in  court,  whether  the  disseisor 
be  there  or  not,  let  the  original  writ  be  read. 

5.  Afterwards  let  the  plaintiff  be  asked  of  what  com- 
mon he  makes  his  plaint,  and  of  how  much,  and  to 
what  tenement  he  claims  the  common  to  belong.  And 
then  let  him  declare  his  title,  as  above  is  said.  For  if 
he  has  no  fee  tenement  to  which  the  common  may  be- 
long, he  shall  fail  in  his  plaint  without  any  other  rec- 
ognisance of  the  assise.  He  may  then  say  that  the 
common  is  appurtenant  to  his  free  tenement  in  such  a 
vill  by  reason  that  he  was  enfeoffed  of  such  a  tenement, 
at  which  time  that  common  was  appurtenant  thereto, 
and  by  such  purchase  he  was  seised  thereof,  and  his 
seisin  peaceabW  enjoyed,  until  he  was  ejected  or  dis- 
turbed. If  he  says  that  he  is  disseised  of  one  hundred 
acres  of  common,  he  may  fail  in  his  plaint,  inasmuch 
as  he  ought  to  say  that  he  is  disseised  of  the  pasture 
of  one  hundred  acres  of  common. 


302  BKITTON.  [I,  *U7. 


CHAPTER  XXVI. 

Of  Exceptions  to  Common. 

1.  The  plaintiff's  contention  being  thus  set  forth,  if 
the  tenant  or  his  bailiff  does  not  appear,  the  assise  shall 
proceed  by  his  default ;  but  if  the  tenant  is  in  court, 
let  him  first  consider  how  he  may  aid  himself  by  ex- 
ceptions against  the  judge,  or  against  the  plaintiff  ; 
against  whom  he  may  object,  that  the  action  and  plaint 
do  not  belong  to  him,  inasmuch  as  he  is  only  a  farmer, 
bailiff,  or  guardian  ;  *or  he  may  say  that  he  is  his  vil- 
lain. Nev'^ertheless,  in  case  Avhere  a  villain  of  whom 
his  lord  is  not  seised  has  married  a  free  woman,  who 
holds  of  her  own  inheritance  the  tenement  to  which 
the  common  is  appurtenant,  and  whereof  the  lord  of 
the  villain  has  disseised  them,  the  assise  shall  not  be 
barred  by  the  exception  of  villenage,  but  the  common 
shall  be  united  again  to  the  freehold  ;  and  the  lord  may 
take  ])roceedings  to  prove  his  right  to  the  person  of 
the  plaintiff  if  he  thinks  proper  to  do  so.^ 

2.  There  are  several  other  exceptions  ;  thus,  whereas 
writ  says  '  hath  unjustly  disseised  him,'  the  tenant 
may  traverse   this   statement,  and   say  that   he    was 

^The  above  case  is  more  fully  explained  in  Bracton,  where  it 
api>ears  that  even  though  tlie  villain  was  in  the  loi'd's  seisin,  yet 
the  common  might  be  recovered  by  the  assise,  as  accessory  to 
the  wife's  freehold.     (Bracton,  224  h,  s.  8.) 


I,  *147  h.]  OF  EXCEPTIONS  TO  COMMON".     20^ 

never  seised  ;  and  if  he  can  verify  this,  the  writ  shall 
fail.  But  before  proceeding  to  the  assise,  the  plaintiff 
should  be  asked  in  what  manner  he  was  seised  ;  and 
if  he  says  by  title  of  gift,  then  a  slighter  seisin  is  suf- 
ficient on  account  of  the  union  of  the  wills  of  the  donor 
and  the  purchaser,  together  with  the  view  and  assign- 
ment of  the  tenements  in  the  presence  of  the  neigh- 
bours, than  where  the  title  is  by  succession.  For  in 
case  of  a  feoffment,  if  the  purchaser  be  ejected  im- 
mediately after  the  assignment  of  the  donor,  although 
such  purchaser  has  not  put  his  beasts  in  the  pasture, 
yet  it  does  not  follow  that  he  shall  not  recover  by  this 
assise.  But  in  case  of  succession  it  is  otherwise.  For 
it  may  well  be  that  the  predecessor  was  disseised  in 
his  lifetime ;  or  the  seisin  may  have  been  usurped  by 
intrusion  of  the  tenant  during  the  vacancy  *of  seisin ; 
in  which  case  this  assise  will  not  avail  the  successor, 
as  above  is  mentioned. 

3.  To  that  which  is  contained  in  the  writ,  '  of  his 
common  of  pasture  appurtenant  to  his  freehold  in  such 
a  vill,'  it  may  be  answered  that  the  soil  of  the  com- 
mon, and  the  tenement  to  which  the  plaintiff  alleges 
the  common  to  belong,  are  of  diverse  baronies  or  diverse 
fees,  and  that  the  fee  in  which  the  common  is  demanded 
is  so  free  that  it  is  not  charged  with  any  sort  of  servi- 
tude to  the  other  fee,  and  that  the  plaintiff  never  com- 
moned  or  had  any  right  of  common  either  by  title, 
usage,  vicinage,  or  otherwise ;  and  if,  notwithstanding, 
he  ever  did  common,  it  was  by  force,  or  secretly  by 
stealth,  or  by  leave,  or  at  will ;  and  if  he  otherwise^ 


304  BRITTON.  [I,  *148. 

commoned,  he  never  did  so  peaceably,  but  his  beasts 
were  driven  away  or  impounded,  and  he  and  his  serv- 
ants released  upon  security.  To  which  the  plaintiff 
may  reply,  and  allege  the  contrary,  if  he  thinks  fit  to 
do  so. 

4.  Or  the  tenant  may  say,  that  the  soil  where  the 
plaintiff  demands  common  is  his  several,  which  he  may 
plough,  sow,  and  enclose  at  his  pleasure,  and  at  all 
times  keep  enclosed.  Or  he  may  say  that  the  plaintiff 
hath  no  land  or  tenement  to  which  that  common  was 
ever  bound  or  appurtenant ;  or  if  he  hath  land  or  tene- 
ment, yet  no  common  is  appurtenant  thereto,  for  the 
same  tenement  to  which  he  claims  the  common  to  be- 
long used  to  be  forest,  or  heath,  or  marsh,  or  other 
waste,  and  *common  to  all  those  of  the  neighbourhood, 
though  the  same  be  now  asserted  and  ploughed  up, 
and  that  one  common  cannot  be  appurtenant  to  another. 
Or  he  may  say  that  the  principal  disseisor  named  in 
the  writ  is  dead.  Or  he  may  say  that  he  recovered  the 
common  by  judgment  of  our  court  as  appurtenant  to 
such  a  tenement  which  he  recovered. 

5.  Or  he  may  say  that  the  plaintiff  wrongfully  com- 
plains, for  that  at  the  time  of  the  plaint,  and  on  the 
day  of  the  date  of  the  writ,  the  plaintiff  himself  was 
seized,  and  that  the  present  plaint  cannot  try  a  fact  of 
more  recent  time;  and  therefore  at  the  time  of  the 
plaint  he  had  no  cause  of  action,  and  consequently  the 
plaint  is  null ;  or  that,  if  he  was  disseised  at  the  time 
he  complains,  yet  he  had  no  cause  of  action,  for  that 
after  he  was  disseised  he  took  back  his  seisin  without 


I,  *148  J.]  OF  PASTUKE.  305 

judgment,  whereby  he  is  become  a  disseisor,  and  that 
an  assise  is  therefore  commenced  against  him.  And 
according  as  such  exceptions  shall  be  made  good, 
judgment  shall  be  given  for  one  party  or  the  other. 


CHAPTER  XXYII. 

Of  Admeasurement  of  Pasture. 

1.  Although  a  person  has  some  right  of  common, 
yet  he  ought  not  to  exceed  by  putting  in  more  cattle 
or  usurping  more  common  than  he  is  entitled  to,  or  than 
belongs  to  his  freehold,  but  only  to  that  to  which  the 
ijoramon  is  appurtenant.  *For  if  any  person  holds  an 
hundred  acres  of  land  and  common  be  appurtenant  to 
all  the  land,  and  if  he  aliens  this  land  and  purchases 
other  to  which  common  is  not  appurtenant,  in  such  case 
he  cannot  retain  any  part  of  the  common,  except  by 
title  of  usage  beyond  the  term  of  limitation  running  in 
an  assise  of  Mortdancester.  And  although  he  has  re- 
served one  acre  to  which  common  is  appurtenant,  yet 
he  ought  to  have  common  only  in  proportion  to  the 
quantity  of  land  so  reserved. 

2.  If  he  will  perforce  have  more,  the  lord  or  owner 
of  the  soil  should  apply  a  remedy  by  impounding  the 
surcharge  or  excess  of  his  cattle.  And  if  he  cannot 
do  it  by  himself,  he  may  avail  himself  of  the  remedy 
by  this  assise  for  the  excess  of  the  cattle,  in  like  man- 
ner as  this  assise  would  also  lie  between  the  owner  of 


306  BRITTON.  [1,  *14lL 

the  soil  and  any  one  who  in  spite  of  the  owner  insisted 
upon  commoning  where  he  had  no  manner  of  right  or 
title  to  claim  common, 

3.  If  the  lord  will  not  interpose,  a  remedy  is  afforded 
at  the  plaint  of  the  commoners  by  our  writ  to  the 
sheriff  of  the  county,  to  remove  every  outrage,  and 
bring  every  excess  to  a  certain  limit ;  in  which  writ 
our  command  runs  thus  : 

'  John  has  complained  to  us  that  Peter  has  un- 
justly surcharged  his  common  of  pasture  in  N.,  and 
has  put  in  more  beasts  than  belongs  to  him  to  put ; 
therefore  we  command  thee,  that  without  delay  thou 
cause  the  aforesaid  common  to  be  admeasured,  so  that 
the  same  *Peter  shall  not  have  more  beasts  than  to  him 
belongs  to  have  according  to  the  free  tenement  which 
he  holds  in  the  same  vill ;  and  that  the  aforesaid  John 
have  as  much  common  as  belongs  to  him,  and  that  w& 
hear  no  further  complaint.' 

4.  In  such  case  it  is  the  sheriff's  duty  to  take  pledges 
to  prosecute,  and  afterwards  to  cause  the  lord  of  the 
soil  and  all  the  commoners  and  other  neighbours,  as 
well  as  the  person  against  whom  the  plaint  is  brought, 
to  be  summoned,  to  be  upon  the  same  common  at  a 
certain  day,  to  cause  the  common  to  be  measured  ac- 
cording to  our  command  ;  and  that  the  parties  be  then 
prepared,  the  one  to  show  his  grievances,  and  the  other 
his  right,  if  he  chooses  to  appear.  At  the  day  named, 
if  the  plaintiff  does  not  come,  he  and  his  pledges  shall 
remain  in  mercy  of  the  sheriff,  and  nothing  more  shall 
be  done  upon  that  writ.     If  the  plaintiff  appears  at 


I,  *149  h.]  OF  PASTURE.  307 

the  day,  although  his  adversary  does  not  appear,  yet 
the  admeasurement  is  not  to  be  put  off. 

5.  If  the  defendant  comes  and  produces  his  muni- 
ments an  I  explains  his  title,  then  let  the  sheriff  cause 
twelve  good  men  ^  to  be  chosen,  who  are  to  swear  that 
they  will  lawfully  do  what  the  sheriff  shall  charge  them 
on  our  behalf.  Then  let  them  be  charged  to  declare 
whether  he  against  whom  the  plaint  is  brought  has  any 
freehold  to  which  the  common  is  appurtenant,  and  how 
many  beasts  the  commoners  may  common  there  in 
respect  of  every  acre,  and  what  sort  of  beasts ;  and 
whether  at  all  times  in  the  year,  or  only  at  certain 
times ;  and  whether  all  kinds  of  beasts,  or  only  a  certain 
number  ;  and  whether  in  each  part  and  all  parts,  or  only 
in  a  certain  part, 

6.  If  the  defendant  claims  common  by  title  of  gift, 
then  it  shall  further  be  inquired  whether  he  was  seised 
thereof  before  the  *soil  was  given  to  become  common 
to  the  other  commoners,  or  not.  And  if  before,  let 
him  remain  in  his  seisin ;  and  if  after,  then  it  must  be 
asked  whether  he  enjoyed  his  seisin  under  that  gift  or 
not,  and  whether  the  donor  was  himself  seized  of  the 
thing  which  he  is  supposed  to  have  given  ;  and  judg- 
ment shall  be  given  accordingly.  And  if  the  gift  be 
prejudicial  to  the  commoners,  the  gift  shall  be  good 
only  to  the  extent  to  which  the  donor  might  give  with- 
out prejudice  to  any. 

1  The  word  prodehomme,  as  well  as  the  similar  expression  good 
and  laioful  man,  implied  the  possession  of  a  freehold.  Compare 
the  note  in  p.  267. 


308  BRITTOK  [I,  ^50. 

7.  If  he  claims  his  seisin  and  title  by  usage  in  the 
same  manner  as  the  other  commoners,  and  can  verify 
this  title,  then  let  the  pasture  fall  into  hotchpot  among 
the  commoners  according  to  every  freehold  to  which 
the  common  is  appurtenant,  so  that  every  acre  be  put 
on  equal  terms  with  the  others. 

8.  When  the  jurors  have  brought  in  their  verdict, 
let  it  be  immediately  put  in  writing,  and  sealed  under 
the  seals  of  the  jurors,  and  also  entered  on  the  roll,  so 
that  if  the  defendant  would  again  surcharge  the  pasture, 
the  plaintiff  may  have  his  remedy  by  the  penalty  pro- 
vided in  our  statutes  for  a  second  surcharge  of  pasture. 

9.  With  regard  to  a  tenement  held  jointly  among 
])arceners,  and  turned  into  common  by  their  mutual 
consent,  if  one  of  the  parceners  will  surcharge  this  com- 
mon with  more  cattle  than  he  ought,  or  in  any  other 
manner  than  according  to  the  purport  of  the  first  agree- 
ment, a  remedy  lies  for  the  other  parceners  by  our  writ 
of  admeasurement,  and  also  by  the  assise  if  they  please,^ 
*as  is  above  explained  concerning  the  owner  of  the 
land. 

*  That  is,  if  they  decide  upon  treating  the  wrong  as  a  disseisin 
of  their  freehold,  and  not  merely  as  a  surcharge  of  common. 
See  Brae.  2296  ;  Fie.  263  (§  4)r. 


I,  *150  h.]  OF  QUO  JURE.  309 


CHAPTER    XXYIII. 

Of  Quo  jure. 

1.  Although  some  acquire  common  through  negligence 
of  the  owners  of  the  soil  by  long  usage  and  peaceable 
seisin,  and  by  the  folly  and  sufferance  of  the  owneis 
with  knowledge  of  the  fact,  and  although,  if  any  one 
who  has  thus  enjoyed  his  seisin  be  ejected  or  disturbed, 
he  may  recover  his  seisin  by  this  assise,  yet  because 
there  would  be  a  great  defect  in  the  law  if  the  common 
thus  purchased  should  remain  in  that  manner  with  the 
purchaser,  such  title  arising  rather  by  time  than  by 
right,  and  because  the  law  will  not  deprive  the  owners 
of  their  remedy  in  the  right  of  property,  therefore  a 
writ  upon  the  right  called  Quo  Jure  has  been  provided, 
by  which  the  owner  shall  recover  in  the  right  of  proj)- 
erty  that  which  he  has  lost  in  the  right  of  possession, 
2.  Not  every  one  however  can  proceed  by  this  writ. 
For  no  one  is  allowed  to  have  his  action  by  this  writ 
except  the  chief  lord  of  the  manor  or  vill  in  which  the 
common  lies,  or  of  the  principal  part  thereof.  It  is 
moreover  necessary,  in  order  that  this  writ  may  lie, 
that  the  tenement  to  which  the  plaintiff  alleges  the 
.tjommon  to  belong,  and  the  soil  of  the  common  be  of 
different  fees  or  of  "^different  baronies  or  of  different 
feoffments,  so  that  the  plaintiff  and  the  person  of  whom 
he  complains  do  not  hold  their  tenements  and    their 


810  BIUTTOK  [I,  *151. 

pastures  in  common  but  in  severalty.  For  in  cases 
where  there  are  several  feoffees  of  one  lord  in  the 
same  manor  or  vill,  this  writ  does  not  take  place  be- 
tween the  neighbours,  because  between  neighbours  res- 
ident in  one  fee  such  common  is  more  properly  called 
vicinage  than  common  ;  as  w^here  one  neighbour  al- 
lows another  to  common  with  him,  provided  the  other 
allows  the  same,  but  not  otherwise.  AVhen  therefore 
any  lord  has  lost  by  judgment  in  the  possessory  right, 
and  another  has  gained  by  assise  of  Novel  Disseisin 
by  reason  of  his  usage  and  seisin,  yet  the  latter  may 
lose  by  this  writ  if  he  can  show  no  other  title,  unless  he 
has  enjoyed  his  seisin  before  the  time  limited  in  a  writ 
of  right.  And  one  chief  lord  or  more  may  implead  one 
chief  lord  or  more,  as  well  as  one  lord  another,  whether 
their  tenements  lie  in  one  or  several  vills,  so  long  as  they 
are  of  diverse  fees. 

3.  When  this  plea  comes  into  court,  the  person  im- 
pleaded may  be  essoined  on  the  first  day  as  well  as  the 
plaintiff,  and  shall  by  his  essoiner  have  another  day  ; 
at  which  day  if  he  makes  default  an  attachment  shall 
be  awarded  against  him,  as  in  personal  pleas,  because 
no  pasture  is  here  demanded,  as  is  sometimes  demand- 
ed in  a  writ  of  right.  But  when  the  person  impleaded 
has  appeared  in  court,  and  it  is  specified  in  our  court 
what  common  *lie  claims,  then  from  this  point  the  same 
process  lies  as  in  a  writ  of  right ;  and  therefore  if  the 
party  impleaded  afterwards  makes  default,  the  pasture 
shall  be  taken  into  our  hand  by  the  little  Cape. 

4.  At  the  day  of  plea,  the  parties  being  present,  the 


I,  *151  J.]  OF  QUO  JURE.  *        311 

plaintiff  shall  state  his  declaration  in  this  form  :  '  This 
showeth  to  you  John,  who  is  here,  that  Peter  and  the 
others  named  in  the  writ,  who  are  there,  (if  there  are 
more  than  one  impleaded,)  wrongfully  demand  common 
in  his  lands  in  N.,  which  they  ought  not  to  have  : '  he 
should  also  specify  the  quantity  of  acres  and  number 
■of  cattle,  and  in  what  seasons,  according  as  the  person 
impleaded  specifically  claimed  in  our  Court : — '  and  here- 
in wrongfully,  in  that  the  same  Peter  or  the  others  do 
not  pay  him  any  rent,  or  perform  to  him  any  service, 
nor  does  he  elsewhere  common  with  them,  whereby 
they  ought  to  common  in  his  lands  ;  and  if  they  deny 
it,  then  he  tenders  averment  b}^  suit  and  proof.' 

5.  Then  let  it  be  asked  by  the  Justice  what  common 
they  claim,  and  how  much,  and  let  their  answer  be  en- 
rolled. And  then  let  it  be  inquired  of  them  what 
services  they  perform  for  having  such  common  ;  or,  if 
they  were  enfeoffed  of  any  tenement  to  which  this 
common  is  and  then  was  appurtenant,  let  it  be  specified 
what  service  and  what  tenement,  and  the  quantity, 
and  who  are  tenants  thereof.  So  likewise,  where  they 
set  up  peaceable  seisin  as  a  title. 

*6.  Then  let  the  defendants  answer  and  defend  them- 
selves by  proper  words  of  defence  in  this  manner  : 
*  Peter  (and  the  others  named  in  the  writ)  defend  the 
wrrong  and  force,  and  well  show  unto  you  that  they 
rightfully  demand  to  common  in  the  land  of  the  same 
John  in  N.  by  reason  that  they  and  their  ancestors 
and  their  tenants  of  N.  have  commoned  there  by  con- 
tinuance of  peaceable  seisin  before  the  term  limited  ia 


312  BRITTON.  [I,  *152/ 

the  writ  of  right,  performing  to  John  the  following 
service,  to  wit,  that  every  astrier  in  the  same  vill  was 
used  to  give  to  the  same  John  and  his  ancestors  a  hen 
yearly  at  Christmas,  whereof  they  put  themselves  on 
God  and  the  great  assise,  whether  they  and  their  people 
of  N.  have  better  right  to  common  in  the  lands  of  the 
aforesaid  John  in  N.  by  such  service  that  every  com- 
moner who  has  his  hearth  in  the  same  vill  of  N.  ought 
to  give  to  the  aforesaid  John  one  hen  by  the  year  at 
Christmas,  as  is  aforesaid,  or  the  same  John  to  hold  his 
land  in  N.  as  his  several,  without  the  aforesaid  Peter 
and  the  others  having  any  right  to  common  there.' 

7.  There  are  several  sorts  of  services  which  are  per- 
formed to  the  owner  of  a  fee  for  having  common  in  his 
fee,  as  service  in  money,  or  by  reaping  at  harvest  time 
so  many  days  or  one  day ;  so  likewise  by  mowing  or 
ploughing  one  day  or  more,  or  by  some  *other  compli- 
ment of  annual  courtesy  reduced  to  certainty  and  of  a 
certain  value,  so  that  such  rent  may  be  comprised  in 
the  extent  of  the  manor, 

8.  Or  the  defence  may  run  thus  :  '  well  and  trul}'^  say 
that  they  lawfully  demand  common  by  reason  that  the 
same  John  hath  commoned  throughout  all  the  lands  of 
the  .same  Peter  (and  the  others)  until  within  three  years 
last  past,  when  he  of  his  own  accord  maliciously  with- 
drew himself  therefrom,  with  the  intent  thereby  to 
exclude  the  same  Peter  (and  the  others)  from  common- 
ing  in  his  lands.'  And  if  this  be  verified  by  a  jury,  or 
acknowledged  by  both  parties,  Peter  and  the  others 
shall  retain  their  common,  and  John  shall  remain  in 


I,  *152  k]  OF  QUO  JURE.  813 

mercy  ;  but  he  may  nevertheless  common  in  their  lands 
as  he  used  to  do ;  and  if  he  be  disturbed  thereof,  he 
shall  recover  by  assise  of  novel  disseisin,  unless  he  has 
by  his  own  folly  acknowledged  in  our  court  that  he  does 
not  claim  any  common. 

9.  If  the  persons  impleaded  can  neither  assign  any 
service  or  consideration  of  vicinage,  then  they  must 
show  some  other  title,  as  title  of  purchase  or  long  seisin 
by  prescription  of  time.  Or  they  may  say,  that  if  John 
does  not  now  common  with  them,  he  may  impute  it  to 
his  own  negligence,  or  to  the  negligence  of  his  an- 
cestors, inasmuch  as  they  used  to  common  in  their  lands 
in  N,  in  return  for  having  this  common  now  in  dispute ; 
but  *that  the  ancestors  of  John  were  ejected,  and  suf- 
fered the  soil  to  be  ploughed  or  built  upon,  the  which 
common  he  might  still  obtain  if  he  had  not  excluded 
himself  from  his  action  by  non-claim.  If  the  parties 
go  to  a  jury  upon  this  point,  the  truth  thereof  shall  be 
inquired  by  these  words,  whether  John  and  his  men  of 
such  a  vill,  and  Peter  and  the  others  and  their  men  of 
the  other  vill,  Avere  ever  used  to  common  together  in 
such  a  place  or  not ;  and  according  to  the  verdict  judg- 
ment shall  be  given.  Other  exceptions  may  be  used, 
some  of  which  have  been  before,  and  others  shall  be 
hereafter  mentioned. 

10.  If  the  tenements  are  of  one  fee,  then  one  neigh- 
bour cannot  hinder  another  from  reasonable  common 
in  respect  of  vicinage,  unless  by  virtue  of  some  special 
saving,  but  that  the  person  disturbed  shall  recover  his 
seisin  by  the  assise. 


814  BPJTTOK  [I,  *153. 

11.  With  regard  to  seisin  of  common  of  pasture  re- 
covered by  the  assise,  and  afterwards  lost  by  a  Quo  jure 
in  the  manner  pointed  out  in  this  chapter,  we  will 
have  it  understood  that  seisin  may  also  be  recovered, 
and  then  got  back  again  by  him  who  has  the  better 
right  by  means  of  a  Quo  jure  in  the  case  of  all  other 
commons,  such  as  common  rights  of  digging,  of  fishing, 
of  watering  cattle,  or  of  chase,  and  others  which  are 
innumerable,  with  their  appurtenances,  which  are  free 
ingress  and  egress. 


*CHAPTER  XXIX. 

Of  reasonahle  Estovers. 

2,  There  is  another  sort  of  common,  as  of  mowinsr. 
lopping,  digging,  or  cutting  in  another's  wood,  or  in  a 
forest  or  quarry,  marsh,  heath,  or  waste,  to  the  extent 
of  such  reasonable  estovers  as  are  required  for  burning, 
building,  or  fencing,  and  doing  such  other  necessary 
things  according  as  one  tenement  shall  be  subject  and 
charged  to  another,  to  be  enjoyed  at  least  for  term  of 
life ;  and  if  any  one  be  ejected  or  disturbed  in  his  seisin 
thereof,  he  shall  have  remedy  by  this  assise,  provided 
that  he  can  aver  certain  soil  to  be  charged  or  appointed 
where  he  is  to  receive  his  estovers,  and  which  he  can 
cause  to  be  viewed  by  the  jurors  of  the  assise.  He  may 
be  disturbed  thereof  many  ways,  as  if  the  owner  of  the 
wood  cause  the  whole  of  the  wood  to  be  cut  down  to  the 


I,  «153  5.]  OF  REASONABLE  ESTOVERS.       315 

ground,  so  that  none  remains,  or  at  least  if  as  much  as 
is  required  for  common  is  not  planted  again  ;  or  if  he 
is  not  permitted  to  take  any,  or  not  sufficient,  or  only 
by  delivery,  or  only  at  certain  times. 

2.  And  because  great  dispute  may  be  set  at  rest  by 
proper  specification  in  the  writings  upon  the  first 
contract,  it  is  well  that  all  estovers  should  be  plainly 
expressed  in  writings,  whether  they  are  to  be  taken  in 
every  part,  or  whether  in  a  certain  place,  and  whether 
at  all  times  or  only  at  certain  times,  and  of  what  woods, 
and  in  what  places,  and  within  what  boundaries,  and  for 
what  tenement ;  *so  that  all  things  be  reduced  to  a  cer- 
tainty and  to  just  measure,  and  that  the  one  party 
may  not  commit  waste,  nor  the  other  hinder  a  measure- 
ment. 

3.  But  if  turbary,  heath,  herbage,  mast,  wood,  waste, 
or  other  thing  just  above  named,  be  held  in  common 
between  parceners  or  neighbours,  and  any  one  of  them 
commit  excess,  waste,  or  destruction,  then  let  such 
remedy  be  applied  as  is  ordained  in  our  statutes. 


316  BRITTON.  [I,  *154. 


CHAPTER  XXX. 

Of  Nusances. 

1.  There  still  remain  other  kinds  of  disseisins,  which 
are  to  be  remedied  by  this  assise,  and  which  arise  from 
tortious  n usances  done  by  one  neighbour  to  another; 
as  when  a  watercourse  is  wrongfully  diverted  or 
stopped,  to  the  annoyance  of  the  neighbour's  freehold. 
For  it  is  a  right  which  may  belong  to  any  tenement 
that  the  tenant  may  convey  water  out  of  another's 
soil  and  through  another's  soil  to  his  own,  at  all  times 
or  at  certain  times,  and  in  what  quantity  he  pleases, 
or  only  to  a  certain  quantity  ;  and  if  he  is  wrongfully 
disturbed  thereof  in  the  whole  or  in  part,  then  the 
remedy  by  this  assise  is  applicable.  So  in  case  any 
one  does  in  his  own  soil  something  injurious  to  the 
free  tenement  of  his  neighbour  ;  as  if  one  raise  his  pond 
so  high  as  to  damage  his  neighbour's  freehold. 

*2.  Of  nusances,  however,  some  are  both  tortious  and 
hurtful,  others  hurtful  yet  not  tortious ;  therefore  it 
behoves  every  plaintiff  in  this  case  to  show  what 
damage  is  occasioned  to  him  by  the  nusance.  And  if 
the  nusance  be  found  to  be  both  hurtful  and  tortious, 
then  matters  are  to  be  entirely  restored  to  their  former 
condition.  If  not  tortious,  it  must  be  tolerated,  how- 
ever hurtful  it  may  be.  For  unto  common  in  another's 
soil  always  belong  a  drove-way  and  free  ingress  and 


I,  *154  h.]  OF  KUSAKCES.  317 

egress,  although  the  drove-way  may  be  hurtful;  and 
if  the  owner  of  the  soil  destroys  the  ingress,  and  stops 
it  by  a  wall,  hedge,  or  ditch,  so  as  to  commit  an  evident 
nusance  to  the  commoner,  this  nusance  is  both  tortious 
and  hurtful ;  and  therefore  the  whole  is  to  be  removed 
and  restored  to  its  former  condition  by  this  assise,  or 
even  without  writ,  so  as  it  be  done  immediately  upon 
the  fact. 

3.  The  like  proceedings  must  be  taken  where  one 
has  a  right  to  go  through  another's  soil,  and  the  way 
is  stopped  or  straitened  in  such  a  manner  that  he  can- 
not go,  or  not  so  conveniently  as  he  used.  The  like 
where  the  free  course  of  water  through  another's  soil 
is  due  by  ancient  usage  or  grant,  if  such  course  be 
stopped  or  diverted  in  part  or  entirely.  So  if  a  pond  be 
newly  made,  or  heightened,  or  lowered,  whereby  the 
adjoining  tenement  is  drowned  or  injured  ;  *in  such 
case  the  nusance  is  both  tortious  and  hurtful,  although 
this  servitude  be  rather  created  by  law  than  established 
by  man ;  and  therefore  all  is  to  be  restored  by  this 
assise  to  the  condition  it  used  to  be  in,  at  the  cost  of 
the  offenders.  So  if  he  to  whom  belongs  the  servitude 
of  having  a  free  chase  in  another's  soil  be  disturbed 
entirely  or  in  part,  so  that  he  cannot  enjoy  his  chase 
according  as  he  ought  and  used  to  have  it. 

4,  And  such  nusance  may  be  assigned  before  the 
Justices  in  various  manners;  as  if  a  man  be  entirely 
turned  out  of  his  way  or  disturbed  in  any  manner ;  or 
if  a  way  be  diverted  to  the  nusance  of  the  commoner, 
so-  that  he  is  obliged  to  go  far  round,  whereas  he  used 


318  BRITTON.  [I,  *155. 

to  go  and  drive  straight ;  or  if  the  way  be  narrowed^ 
so  that  he  cannot  drive  a  wagon  or  cart  therein  as  he 
ought  and  used  to  do,  although  room  enough  may  be 
left  for  horses  and  beasts.  So  where  any  one  has  done 
an  act  whereby  his  neighbour,  who  has  a  right  to  com- 
mon with  him  either  by  watering  his  cattle  at  his 
watering-place,  or  by  drawing  Avater  from  his  well,  or 
otherwise,  is  hindered  from  commoning  as  he  ought, 
either  by  disturbance  of  the  way  leading  to  or  from 
the  water,  or  by  disturbance  of  the  water  itself.  For 
as  manifest  a  disseisin  is  committed  by  him  who  does 
not  suffer  a  watercourse  which  should  move  a  mill  to 
be  repaired  where  it  is  stopped,  as  by  him  who  does 
not  allow  the  mill  to  be  used. 

5.  A  watercourse  is  sometimes  granted  to  a  person, 
and  sometimes  to  the  tenement  of  another.  A  grant 
made  to  a  person  becomes  extinct  upon  the  death  of 
the  person.  *But  that  which  is  purchased  to  my  soil 
remains  perpetual ;  and  according  to  the  purchase,  and 
usage,  and  seisin,  the  right  is  to  be  recovered,  if  the 
owner  is  disseised  of  it ;  and  in  this  and  the  like  cases 
there  lies  a  remedy  by  this  assise,  for  redressing  the 
nusance  at  the  cost  of  the  disseisors. 

6.  With  regard  to  the  servitude  which  consists  in 
this,  that  it  is  not  lawful  for  any  neighbour  to  erect 
in  his  own  soil  a  mill,  or  weir,  or  sluice,  or  other  like 
thing,  to  the  damage  of  the  free  tenement  of  his  neigh- 
bour, a  remedy  also  lies  by  this  assise  to  abate  the 
whole,  if  any  nusance  be  done  contrary  to  this  obliga- 
tion.    So  likewise,  where  a  nusance  is  committed  by 


I,  *155  h.]  OF  NUSANCES.  319 

pulling-  down  or  destroying  that  which  at  first  was 
lawfully  raised,  as  by  pulling  down  a  Avail,  filling  up  a 
ditch,  destroying  a  fishery,  pond,  bridge,  or  sluice,  or 
other  such  thing,  the  thing  shall  be  restored  by  this 
assise  to  its  former  condition  at  the  cost  of  the  oflFenders, 
and  thus  the  nusance  shall  be  removed. 

T.  As  one  may  do  a  wrong  and  a  disseisin  by  an  act, 
in  doing  or  undoing,  so  a  person  may  commit  a  disseisin 
by  negligence  without  doing  anything ;  as  where  one 
is  bound  to  fence  or  repair  or  cleanse  or  the  like,  and 
lets  the  matter  be  without  doing  anything,  which 
omission  is  prejudicial  to  the  free  tenement  of  his  neigh- 
bour ;  and  this  neglect  is  punishable  by  the  assise. 
And  as  one  *may  commit  a  tortious  nusance  by  not 
doing  something,  so  the  like  may  be  done  by  not  per- 
mitting something  ;  as  where  a  person  will  not  suffer 
him  to  fence  or  to  reap  who  is  bound  to  do  so  in  ease- 
ment of  the  complainant's  freehold ;  and  this  wrong 
may  also  be  remedied  by  the  assise. 

8.  There  are  however  some  nusances  which  sheriffs 
are  authorised  to  redress,  as  are  also  our  hundreders, 
and  many  other  freemen,  who  have  view  of  francpledge 
for  the  common  benefit ;  ^  as  in  the  case  of  a  way  being 
stopped,  in  order  that  passengers  may  not  be  too  long 
deprived  of  their  way,  and  in  the  case  of  several  other 

1  •  It  should  be  known  that  the  sheriff  ought  not  to  redress  any 
nuisance  presented  at  his  tourn,  if  it  be  not  wrongful  and  in- 
jurious to  the  community  (a  commune  des  gentz).  For  nuisance 
done  to  a  single  person  shall  be  redressed  by  a  single  suit  and  not. 
otherwise.'    Note  in  MS.  N. 


320  BRITTOX.  [I,  *156. 

nusances.  But  it  is  not  lawful  for  any  one  to  redress 
such  wrongs  without  our  writ,  except  those  which 
have  been  done  since  the  last  view,  or  since  the  last 
sheriff's  tourn.  And  although  nusances  may  be  re- 
dressed by  the  assise,  yet  it  does  not  follow  that  they 
may  not  be  set  right  by  another  remedy,  as  by  remov- 
ing the  nusance  immediately  upon  the  fact,  or  if  this 
be  not  done,  by  writ  of  Justicies  to  the  sheriff,  whereby 
he  has  authority  to  redress  the  wrong,  being  made  our 
Justice  to  cause  the  w^rong  to  be  remedied ;  and  of 
matters  which  concern  the  writ  he  is  to  bear  record. 


*CHAPTER  XXXI. 

Of  remedy  of  nusances. 

1.  If  a  JusticieSj  or  a  Writ  of  Novel  Disseisin  is  to  be 
obtained  for  a  thing  done  in  one  county  to  the  annoy- 
ance of  a  tenement  lying  in  another  county,  the  writ 
is  always  to  be  directed  to  that  sheriff  in  whose  baili- 
wick the  nusance  has  been  committed. 

2.  Of  ponds  or  of  weirs  raised,  heightened,  or  demol- 
ished, amounting  to  a  tortious  nusance,  it  must  be 
seen  whether  they  are  raised  in  the  tenement  of  the 
plaintiff  where  the  soil  is  his  own  on  both  sides,  as  in  a 
river ; — for  in  such  case  an  assise  of  Novel  Disseisin  of 
the  freehold  of  the  plaintiff  will  lie.  But  if  it  be  in  the 
tenement  of  him  of  whom  the  plaint  is  made,  this  assise 
of  nusance  is  applicable.     And  if  part  is  in  the  one  soil 


I,  *156  b.]  OF  NUSANCES.  321 

and  part  in  the  other,  as  it  sometimes  happens  in  rivers 
where  the  lands  on  either  side  belong  to  different 
persons,  then  properly  an  assise  of  freehold  lies  for  the 
act  done  in  the  soil  of  the  plaintiff,  and  an  assise  of 
n usance  for  the  rest  of  the  nusance  committed  in  the 
other's  soil,  to  remove  the  nusance  ;  and  thus  two  assises 
would  take  place  upon  a  single  fact.  But  to  avoid  the 
charge  of  bringing  two  assises,  the  assise  of  nusance  is 
sufficient  to  redress  the  whole  wrong. 

3.  Again,  for  a  single  act  there  may  arise  several  dis- 
seisins of  freehold,  as  well  as  several  tortious  nusances ; 
as  where  a  person  makes  a  ditch  in  another's  soil 
against  the  consent  of  the  owner  of  the  soil,  he  there- 
by ^disseises  him  of  his  freehold,  inasmuch  as  he  works 
his  soil  against  his  consent,  and  the  ditch  perhaps  is 
made  in  such  a  place  that  the  owner  is  either  disturbed 
of  his  right  of  driving  cattle,  because  some  way  is 
stopped,  or  some  water  is  diverted  from  its  right 
course,  or  partly  hindered  from  running.  And  in  this 
and  the  like  cases  a  remedy  lies  by  this  assise  of  the 
freehold  of  the  plaintiff,  and  by  this  assise  the  whole 
matter  shall  be  terminated,  as  well  for  the  recovery 
of  the  freehold  as  for  the  removal  and  redress  of  the 
nusances ;  and  since  all  the  torts  arise  from  a  single 
act,  they  may  be  remedied  by  a  single  judgment. 

4r.  A  person  may  likewise  do  such  an  act  on  his  own 
soil  as  may  injure  his  neighbour  in  several  ways  ;  as  if 
he  stops  a  way,  although  the  way  be  his  own  soil, 
whereby  his  neighbour  cannot  freely  drive  his  cattle 
and  have  free  ingress  and  egress  for  his  pasture  as  he 

21 


322  BRITTON.  [I,  *157. 

used  ;  in  this  case  be  deprives  him  of  his  common,  and 
consequently  disseises  him  of  that,  and  also  disseises 
him  of  his  way  by  obstructing  it;  and  yet  the  whole 
may  be  redressed  by  one  assise,  as  by  assise  of  way 
stopped. 

5.  There  are  moreover  some  cases  where  a  person 
may  by  a  single  act  commit  several  disseisins,  and  to 
several  people  ;  as  if  any  one  cause  a  common  to  be  en- 
closed, or  a  tenement  in  which  one  man  has  a  free- 
hold, another  (or  several  others)  common  of  pasture, 
a  third  the  right  of  digging  or  of  cutting,  a  fourth  the 
right  of  watering  his  cattle,  a  fifth  a  drove-way,  *and 
thus  of  numberless  other  services,  in  such  case  several 
disseisins  are  committed,  w'hich  may  be  all  restored 
to  their  right  condition  by  this  assise  of  freehold,  if 
the  owner  of  the  soil  will  be  plaintiff;  but  if  he  will 
not,  then  every  one  who  would  have  and  recover  his 
estate  must  bring  his  plaint  each-  for  himself. 

6.  When  the  sheriff  has  received  our  writ  of  Justicies 
of  Common  of  pasture,  reasonable  estovers,  common 
of  fishery,  marsh,  or  the  like,  and  the  plaintiff  has 
found  pledges  of  suit  to  the  sheriff,  it  is  the  sheriff's 
duty  immediately  to  summon  the  party  against  whom 
the  plaint  is  made,  and  the  neighbours  of  the  hundred, 
to  be  at  the  next  county  court,  or  at  the  place  where 
the  nusance  or  the  disseisin  is  committed,  and  that  the 
neighbours  in  the  meantime  go  and  view  the  nusance, 
and  the  pasture,  and  the  tenement  in  which  the  nusance 
is  done,  and  the  tenement  of  the  plaintiff  to  which  it 
is  supposed  to  be  done. 


I,  *157  J.]  OF  NUSANCES.  323 

T.  At  the  day  named  no  essoin  shall  be  allowed  to 
the  defendant,  any  more  than  to  a  disseisor,  but  the  in- 
quest shall  be  taken,  whether  the  defendant  come  or 
not ;  and  according  to  the  verdict  by  view  of  the  jurors 
the  right  condition  of  things  shall  be  restored  as  it  used 
to  be,  at  the  cost  of  the  offender,  who  shall  also  repay 
to  the  plaintiff  his  damages,  and  remain  in  our  mercy» 


*CHAPTER  XXXIT. 

Of  Exceptions  in  the  Assise  of  Nusa/nce. 

1.  When  this  assise  is  brought  for  any  nusance,  he 
against  whom  the  plaint  is  made  may  aid  himself  by 
several  exceptions.  Thus,  he  may  say  that  he  did  not 
commit  any  nusance,  or  raise  a  wall,  or  heighten  a  pond, 
or  throw  down  the  ditch,  but  that  another  person  not 
named  in  the  writ  did  it ;  and  if  this  is  verified  or  not 
denied,  the  writ  falls.  Or  he  may  say  that  the  plaintiff 
had  not  the  tenement  to  which  the  nusance  was  done, 
at  the  time  when  it  was  first  done,  but  another  then 
held  it,  and  none  ought  to  complain  of  a  wrong  done  to 
any  except  himself. 

2.  Or  he  may  say  that  there  is  no  nusance,  or  if  there 
be  any,  yet  the  assise  ought  not  to  pass,  inasmuch  as 
the  nusance  is  not  tortious,  because  the  plaintiff  has 
no  right  to  forbid  it ;  as  in  the  instance  of  a  mill,  which 
one  neighbour  may  erect  in  his  own  soil  without  com- 
mitting a  tort  to  another  neighbour,  although  the  mill 


324  BRITTOK  [I,  *158. 

may  happen  to  be  an  annoyance  to  that  neighbour ; 
and  the  like  of  other  n usances  which  are  not  tortious, 
and  which  if  any  abate  or  remove  by  force,  he  is 
guilty  of  a  manifest  offence  against  our  peace. 

3.  The  parties  having  pleaded  to  the  assise,  let  the 
assise  be  taken,  and  if  it  pass  for  the  plaintiff,  then  let 
the  sheriff  be  commanded  to  cause  the  nusance  to  be  re- 
moved, and  the  place  restored  to  the  condition  in  which 
it  used  to  be,  *at  the  cost  of  the  trespassor,  whether 
water  is  to  be  brought  back  into  its  ancient  course, 
or  the  course  cleansed  and  turned,  or  opened,  or  a  ditch 
filled  up  or  abated,  or  a  pond  lowered,  or  a  wall  or 
hedge  repaired,  or  way  enlarged,  or  any  other  such 
nusance  set  rio^ht  accordinof  to  its  former  condition. 
And  in  all  these  cases  the  thing  is  to  be  restored  to  its 
ancient  condition,  in  breadth,  length,  height  and  depth  ; 
and  the  watercourse  is  not  to  be  made  more  or  less  run- 
ning,  or  lower  or  higher,  or  in  any  manner  altered, 
unless  for  the  better,  from  what  it  used  to  be. 

4.  Every  one  should  always  beware  of  taking  by  his 
own  force  what  he  ought  to  recover  by  judgment ;  for 
if  he  does  so,  and  the  other  party  recover  by  judgment, 
the  true  owner  shall  hardly  after  succeed  in  uniting  by 
judgment  the  seisin  with  the  property. 

5.  With  regard  to  the  word  '  wrongfully  '  contained 
in  the  writ,  care  must  be  taken  to  see  whether  the  nu- 
sance be  wrongful  or  not ;  for  if  it  be  not  wrongful, 
an  exception  thereby  accrues  to  the  respondent.  But 
if  it  be  both  tortious  and  hurtful,  then  it  is  to  be  re- 
moved  and  redressed.     If  it  be  hurtful,  a  distinction  is 


I,  *158  5.]  OF  NUSANCES.  325 

to  be  made.  For  if  it  be  hurtful  to  many  others, 
although  it  be  not  hurtful  to  the  plaintiff,  yet  it  ought 
to  be  removed  by  the  Justices  ex  officio.  For  we  will 
always,  that  the  general  advantage  be  regarded  and 
promoted  before  the  advantage  of  a  private  person. 
And  if  it  be  not  tortious,  although  it  be  hurtful,  the 
plaintiff's  action  ceases  so  far  as  respects  himself,  al- 
though it  may  not  as  it  regards  others. 

*6.  Or  he  may  say,  that  although  at  one  time  it  was 
tortious  to  the  plaintiff,  yet  he  has  now  lost  his  action  ; 
for  he  of  his  own  authority  and  without  judgment,  a 
year  or  more  after  the  nusance  was  done,  abated  it, 
and  proceeded  by  his  own  force,  whereas  he  ought  to 
have  proceeded  by  judgment — although  he  might  have 
so  abated  it  immediately  after  the  fact,  or  at  least  as 
soon  as  he  knew  of  it.  And  this  exception,  if  verified 
or  not  denied,  shall  be  allowed. 

7.  And  whereas  the  words  in  the  writ  are,  '  of  nu- 
sance done  in  the  water,  &c.'  regard  must  be  had 
in  what  county,  in  what  vill,  or  in  what  place,  the 
wrong  is  done  ;  and  the  like  of  a  pond,  weir,  or  other 
nusance  ;  and  whether  the  water  in  which  the  nusance 
is  done  be  in  all  or  in  part  common  ;  ^  and  whether  the 
plaintiff,  or  the  other,  has  the  fishery,  or  only  a  right 
of  fishing.  And  with  reference  to  such  considerations, 
exceptions  may  be  allowable.  For  if  the  water  belongs 
entirely  to  him  against  whom  the  plaint  is  made,  and 

^The  text  is  probably  corrupt.  The  sense,  following  Bracton, 
would  be  :  whether  the  water  is  appropriated  in  the  whole  or  in 
part,  or  is  common. 


32G  BRITTOX.  [I,  *150. 

is  in  the  vill  named  in  the  writ,  and  the  tenement  to 
which  the  nusance  is  done  is  in  the  same  vill,  or  in  the 
same  county,  the  writ  is  good  and  well  purchased  ;  but 
if  not,  the  writ  is  abatable  by  reason  of  these  words, 
'  to  the  nusance  of  his  freehold  in  the  same  vill.'  And 
if  the  plaintiff  has  nothing  in  the  water  but  a  common 
of  iisherv,  and  has  erected  a  weir  in  the  same  water, 
and  the  owner  of  the  water  has  granted  to  another  a 
right  of  fishing  in  the  same  water,  if  the  last  purchaser 
erect  a  weir  to  the  damage  of  the  other  weii',  the  nu- 
sance *shall  be  removed  by  this  assise ;  as  where  a 
market  or  other  franchise  is  granted,  so  that  it  be  not 
a  nusance  to  another  adjoining  market.^ 

8.  In  the  case  last  mentioned,  a  distinction  must  be 
made  as  to  the  proximity  of  a  market,  what  may  be 
called  adjoining  and  what  not,  and  within  what  dis- 
tance bv  road  a  num  may  complain  of  a  nusance  done 
by  one  market  to  another.  In  order  to  justify  the  re- 
moval of  a  market  by  this  assise  as  a  nusance  to  another 
adjoining  market,  the  plaintiff  must  assign  the  nusance 
thus :  that  whereas  he  hath  his  market  on  a  certain 

!•  A  fair  is  a  market  of  all  maimer  of  victual,  and  of  all  man- 
ner of  other  things,  as  of  horses  and  other  beasts,  and  birds, 
and  also  of  a  reer  de  poyz,  as  spiceries  and  other  such  things  ; 
also  of  gold,  silver,  tin,  and  other  metals,  of  pi'ecious  stones, 
linen,  cloth,  furs,  arms,  and  all  kinds  of  merchandise  ;  and  this 
once  a  year.  But  markets  in  country'  towns  maj'  be  one  day  in 
the  week  ;  in  boroughs,  two  days  :  in  cities,  three.  But  in  Lon- 
don and  in  a  town  having  the  same  liberties  as  Tiondon.  (en- 
franchie  come  en  Londres)  every  day  of  tlie  week,  save  Sun- 
day.'   Note  in  MS.  N. 


1,  *159  h.-]  OF  NUSANCES.  327 

•day  of  the  week  in  such  a  town,  he  against  whom  the 
plaint  is  made  has  caused  another  market  to  be  pro- 
claimed and  set  up  on  the  same  day  in  the  same  town, 
or  in  another  town  within  six  miles  and  a  half  and  the 
third  part  of  a  mile  ^  from  his  market.  For  if  the  plain- 
tiff say  that  he  has  set  up  a  market  on  another  day,  or 
if  he  say  that  the  markets  do  not  adjoin  by  seven  miles, 
he  shall  take  nothing  by  his  plaint.  For  a  common 
day's  journey  is  at  least  twenty  miles ;  let  therefore 
the  day  be  divided  into  three  parts,  and  one  part  be 
allowed  for  going  to  market,  another  for  marketing, 
and  the  third  for  returning  home ;  so  that  people  may 
do  all  in  the  day,  and  not  be  obliged  to  go  *or  return  in 
the  night  for  fear  of  evil  doers.  If  therefore  any 
market  be  set  up  adjoining  to  another  market  within 
the  third  part  of  twenty  miles,  and  on  the  same  day  as 
the  other  market,  it  is  a  manifest  nusance ;  and  such 
nusance  may  be  redressed  or  removed  by  this  assise, 
because  it  is  both  hurtful  and  tortious. 

9.  If  any  person  feels  himself  aggrieved  by  any 
franchise  granted  by  us  on  account  of  a  nusance  ac- 
cruing to  a  franchise  belonging  to  him,  and  sets  him- 
self by  force  to  disturb  this  franchise,  or  entirely  to  de- 

1  It  should  be  by  the  calculation  six  miles  and  a  half  and  the 
third  of  a  half  mile,  and  is  so  in  the  parallel  passages  of  Bracton 
and  Fleta.  The  following  clause  is  in  the  charter  of  Edward  III. 
to  the  city  of  London :  '  Item  Quod  nullum  mercatum  de  cae- 
tero  teneatur  infra  septem  leucas  in  circuitu  civitatis  praedictae.' 
(Liber  Albus.  147.)  The  Latin  word  leiica,  French  lue  appears 
to  have  been  used  in  England  for  the  English  mile.  (See  Spell- 
man,  Gloss,  s.  V.  leuca.) 


328  BRITTON.  [I,  *159  h. 

feat  our  act,  he  thereby  appears  to  despise  the  law,  and 
is  therefore  liable  to  be  heavily  amerced.  And,  by  way 
of  punishment  for  his  force,  the  other  shall  retain  his 
franchise,  whether  it  be  prejudicial  to  him  or  not.  For 
none  ought  to  interpret  our  grants  or  our  will  except 
ourselves.  Therefore  we  will  that  in  all  cases  those 
who  think  themselves  injured  by  our  grants,  or  other- 
wise, have  a  suitable  remedy  by  our  orders. 

10.  It  should  be  known  that  in  all  cases  of  disseisin, 
where  no  disseisor  is  alive  at  the  time  when  the  assise 
of  a  freehold,  or  of  a  common,  or  of  reasonable  estovers, 
or  of  a  nusance,  ought  to  be  taken,  the  assise  shall  abate, 
and  the  plaintiff  shall  take  nothing  by  his  writ  or  by 
his  plaint,  but  be  in  our  mercy,  and  the  tenant  go 
quit  without  day  ;  and  remedy  be  given  to  the  plaintiff 
by  writ  of  entry  founded  upon  disseisin,  whereby  the 
tenant  will  be  bound  to  restitution,  although  he  is  not 
punishable  for  the  first  tort,  and  in  which  the  view 
shall  be  made  in  all  points  as  in  the  assise  of  disseisin. 

11.  Concerning  redisseisin,  enough  is  said  in  our 
Statutes, 


I,  *160.]  OF  FAKMS.  329 


^CHAPTER  XXXIII. 
Of  Farms. 

1.  There  is  a  kind  of  action  somewhat  resembling 
that  of  disseisin,  for  the  disturbance  or  spoliation  of  a 
term.  For  the  farmer  has  as  much  right  to  recover 
his  term  and  his  chattel  as  the  freeholder  his  freehold. 
Yet  he  hath  not  any  recovery  by  his  assise,  because  it 
never  lies  for  a  certain  term  except  where  it  is  awarded 
to  the  termor  by  judgment  of  our  court  for  a  debt  or  for 
other  cause  ;  for  in  the  case  of  such  terms  this  assise 
doth  well  lie,  and  the  penalty  of  redisseisin  if  necessar^^ 

2.  But  with  regard  to  the  first  case,  where  the  farm- 
er has  nothing  of  freehold,  if  he  be  ejected,  the  nature 
of  his  term  is  to  be  regarded,  whether  the  freehold 
remains  in  his  lessor  or  in  a  stranger  ;  for  if  in  the 
lessor,  he  may  have  his  remedy  by  the  following  writ  : 
'  Command  Peter  that  he  render  to  John  so  much  land 
with  the  appurtenances  in  such  a  vill.  which  the  same 
Peter  leased  to  him  for  a  term  which  is  not  yet  ex- 
pired. 

3.  But  if  the  lessor  gives  away  the  fee  and  the  free- 
hold, or  the  freehold  alone,  to  a  stranger,  and  he  puts 
another  person  in  seisin  and  ousts  the  farmer  Avithout 
malving  him  any  satisfaction  for  his  term,  and  if  it 


330  BRITTON.  [I,  *160  h. 

happen  that  the  lessor  retains  nothing  by  which  he  can 
be  attached  to  make  him  keep  his  ^covenant  with  the 
termor,  or  otherwise  satisfy  him  for  his  damages  ;  in 
such  case  there  is  not  yet  any  certain  remedy  provided 
against  the  lessors  ;  and  therefore  the  best  advice  in 
such  a  case  is,  that  the  termors  should  keep  themselves 
in  seisin  as  much  as  they  can  ;  and  if  they  are  ejected, 
should  nevertheless  do  their  utmost  to  use  their  seisin, 
and  hinder  the  purchaser  from  using  it  as  much  as  they 
can,  until  satisfaction  be  in  some  way  made  to  them. 

4.  There  are  however  some  cases  in  which  a  person 
has  no  right  to  oppose  his  being  ejected,  as  where  the 
chief  lord  ejects  the  termors  on  account  of  the  ward- 
ship of  the  lands  of  an  infant  who  falls  in  his  ward. 
And  this  the  farmers  ought  to  permit,  because  they  shall 
have  their  recovery  of  the  remainder  of  their  term  when 
such  wards  had  attained  their  full  age. 

5.  There  are  some  cases  where  the  farmers  are  eject- 
ed without  the  consent  of  the  owners  of  the  tenements, 
and  in  such  cases  a  recovery  lies  by  assise  of  novel  dis- 
seisin at  the  suit  of  the  owner  of  the  soil,  where  the 
damages  however  ought  to  be  delivered  by  the  Justices 
ex  officio  to  the  termor.  And  if  the  owner  of  the  soil 
when  he  has  thus  recovered  his  tenement  will  not  de- 
liver it  again  to  his  termor,  he  must  recover  it  by  writ 
of  covenant  :  in  which  writ  the  process  is  by  summons 
and  attachment.  And  whereas  there  are  several  whose 
actions  are  sometimes  limited  to  them  and  their  heirs, 
sometimes  to  their  assigns,  sometimes  to  the  executors, 
and  sometimes  against  executors  and  others  ;  therefore 


I,  160  J.]  OF  FARMS.  331 

remedies  lie   by  our   writs   formed   according  to   the 
particular  case.^ 

Here  ends  the  Book  of  Disseisin  /  and  hegins  the 
Book  of  Mortdancester. 

^This  passage  is  somewhat  obscure,  and  it  will  be  seen  that  in 
some  valuable  manuscripts  a  reading  is  found  which  gives  a 
totally  different  aspect  to  the  whole  sentence.  The  following 
note  from  the  margin  of  MS.  N,  appears  to  explain  the  expres- 
sion, '  dount  les  acciouns  sount  affermez,'  as  referring  to  what 
in  our  modern  terminology  are  called  the  limitations  introduced 
into  the  lease. 

'  In  this  part  a  recovery  is  given  against  the  lessor  where  he  is 
not  guilty  of  the  ejectment ;  with  an  example  of  a  demise  in 
large  terms  (ovesques  vine  touche  de  ferme  lessee  largement). 
Wherefore  when  the  deed  of  lease  makes  mention  thus, 
habendum  et  tenendum  praeditis  B.  et  C.  et  eorum  haeredibus  et 
assignatis  sive  legatariis  :  if  one  of  the  termors  keep  out  the 
other,  or  if  the  executors  keep  out  the  heirs,  or  the  heirs  the  ex- 
ecutors ;  or  if  one  die  within  the  term,  and  his  heirs  or  executors 
be  kept  out  by  the  other  joint  farmer,  the  recovery  appears  in 
the  writing  which  commences  thus  :  '  Every  possession '  (en  la 
escrowette  qe  comence  issi.  Chescune  p'on,  etc).'  Note  in  MS. 
N.  I  am  unable  to  explain  to  what  treatise  or  other  writing  the 
last  words  refer.  The  same  contraction  is  used  for  possession 
-elsewhere  in  the  same  handwriting.    See  li.  iii.  c.  15.  s.  2.  note. 


VOLUME  II. 


BOOK  III. 

OF  INTEUSIONS  AND  THEIE   REMEDIES. 

CHAPTER  I. 

Of  Intrusions. 

I. 

Having  concluded  the  process  whereby  a  plaintifif  may 
recover  his  seisin  of  freehold,  in  redress  of  a  wrong 
done  to  his  own  person,  we  shall  now  speak  of  the 
method  of  recovering  by  plea  the  seisin  of  his  ances- 
tor. For  when  any  one  dies,  his  heir  ought  to  suc- 
ceed to  whatsoever  he  died  seised  of  in  his  demesne 
as  of  fee,  although  another  may  have  had  more  right 
of  property  therein,  unless  he  died  as  a  felon  convict. 
And  if  he  died  without  any  heir,  the  chief  lord  shall 
stand  in  the  place  of  heir. 

2.  But  because  a  person  that  has  no  right  may  im- 
mediately after  the  death  of  any  one  abate  himself 
into  the  inheritance  of  the  right  heir,  and  keep  out  the 
heir  and  the  chief  lord  of  the  fee,  and  no  law  would 
permit  the  seisin  to  remain  in   that  fashion,  the  law 

allows  such  intruders  to  be  ejected  while  the  intrusioD 

333 


334  OF  INTRUSIONS.  [11,  *161  K 

is  fresli  b}'  the  right  heirs  or  the  chief  lord  of  the  fee 
without  any  wrong  being  done  ;  and  the  word  '  fresh  ' 
shall  be  so  understood,  according  as  the  right  heir  has 
means  of  knowing  the  fact,  and  according  as  he  was 
near  or  far,  as  has  been  said  in  the  Book  of  Disseisins. 
*If  they  cannot  so  eject,  or  if  the  abators  have  had  so 
long  and  so  peaceable  a  seisin,  that  they  ought  not  to 
be  ejected  without  judgment,  then  they  must  be  aided 
by  remedy  of  our  court.  ]>ut  because  there  are  sev- 
eral kinds  of  intrusions,  the  form  of  the  writ  must  be 
varied  according  to  the  different  cases. 

3.  Intrusion  is  a  wrongful  abatement  during  the 
vacancy  of  the  soil,  when  no  one  is  in  seisin  either  by 
corporeal  presence  or  by  continuance  of  will ;  as  after 
the  death  of  a  person  who  died  seised  of  the  fee  and 
freehold,  before  the  heir  of  the  deceased  has  taken  any 
sort  of  seisin  ;  or  after  the  decease  of  one  who  in  like 
manner  died  seised  of  the  fee  and  freehold  without 
heir  or  as  a  felon,  before  the  lord  to  whom  the  escheat 
belongs  has  attained  to  seisin  tiiereof;  or  after  the 
death  of  any  one  who  died  seised  only  of  the  freehold 
by  fine  levied  and  chirograph,  or  by  form  of  gift,  or 
by  other  kind  of  tenure  for  term  of  life,  before  he  to 
whom  the  land  ought  to  revert  has  attained  to  seisin. 

4.  As  all  these  cases  are  intrusions,  the  forms  of  the 
writs  must  be  varied  according  to  the  diversity  of  the 
cases.  Sometimes  the  action  and  the  plaint  belong  to 
the  right  heirs,  and  sometimes  to  the  chief  lords  by 
reason  of  escheat,  and  sometimes  by  reason  of  ward- 
ship.    And  because  pleas  ought  rather  to  be  hastened 


11,  *162.]  BKITTON.  3;j5 

tiian  delayed,  it  is  proper  that  such  writs  be  provided 
as  drive  the  intruders  to  answer  by  the  *great  and  little 
Cape^  rather  than  other  kind  of  writs  pleadable  by 
personal  distresses.  In  this  writ  neither  view  nor 
voucher  lies,  because  the  plea  savours  in  part  of  the 
nature  of  novel  disseisin  and  of  trespass  by  reason  of 
the  abatement. 

5.  If  the  heir  be  of  full  age  at  the  time  of  the  death 
of  his  ancestor,  and  holds  himself  in  seisin  of  his  in- 
heritance with  the  deceased,  and  after  the  decease  is 
found  in  seisin,  or  if  after  the  death  of  his  ancestor  he 
finds  the  inheritance  vacant,  and  enters  before  the 
chief  lord  has  seised  it,  it  is  lawful  for  such  lieir  being 
of  full  age  to  keep  out  the  chief  lord  if  he  can,  unless 
he  ought  to  hold  the  inheritance  of  us  in  chief,  so  as 
he  be  always  ready  to  perform  to  the  lord  homage 
or  relief  or  other  service  according  as  law  and  right 
require. 

6.  But  because  all  heirs  are  not  bound  to  perform 
homage  to  their  lords,  we  must  first  understand  the 
nature  of  tenements, — which  are  subject  in  relation 
to  the  lords  of  the  fees,  to  homage,  and  which  not ; 
and  what  tenements  and  what  heirs  ought  to  be  in 
ward  of  the  lords,  and  what  not ;  and  in  respect  of 
what  kind  of  tenements  lords  ought  to  have  wardship, 
marriage,  homage,  and  relief,  and  of  what  not. 


19 


336  BRITTON.  [II,  n62  6. 


*CHAPTER  II. 

Of  Wardship  /  of  the  various  tenures  of  land  /  and  of 
the  remedy  against  supposititious  children. 

1.  There  are  several  kinds  of  fees  and  tenures,  the 
chief  whereof  are  those  of  knight  service  and  grand 
serjeanty,^  which  fees  were  provided  for  the  defence 

1 '  Note,  that  knight's  fee  is  dependent  on  the  shield  (del  escu) ; 
and  signifieth  that  one  ought  to  do  knight's  duty  (fere  cliivalerie) 
for  such  tenements,  i.  e.  exercise  arms  (hahtier  les  armes)  in 
time  of  war.  So  Grand  Serjeanty  is  a  diminutive  of  the  shield 
(un  deminutif  del  escu);  and  signifieth  that  one  should  do 
esquire's  duties  (esquierie)  for  such  tenure,  i.  e.  be  armed,  as 
belongeth  to  an  esquire,  to  combat  in  time  of  war,  or  otherwise 
serve,  as  the  king  or  his  lord  hath  need.  And  he  shall  do  homage, 
for  he  will  do  honourable  service  (honeste  fra)  in  battle,  and 
fight  armed  with  his  target  hanging  from  his  neck,  which  is  to 
him  in  stead  of  shield.  And  this  you  may  understand  by  the 
name,  for  esquier  is,  as  it  were,  escuer.  But  there  is  a  difference 
between  the  arms  (armures)  of  knights  and  esquires.  So  Petty 
Serjeanty  is  a  diminutive  of  Grand  Serjeanty.  For  knights  and 
Serjeants  cannot  endure  in  war  without  being  served  with  provi- 
sions (vitaille)  and  other  things.  Wherefore  for  footmen  (home 
a  pie)  were  such  tenures  provided,  to  do  such  various  duties  as 
belong  to  their  service  ;  because  a  footman  (poun)  cannot  do 
noble  acts  (honeste  fere);  and  gentlemen  (gentiz  gentz)  hold  no 
feat  honourable  except  prowess  of  arms.  All  the  other  tenures. 
«ave  ancient  demesnes,  are  dependent  upon  the  fees  aforesaid. 


II,  *162  b.]  OF  WARDSHIP.  337 

of  our  realm,  and  of  which  the  heirs  are  not  capable 
of  defence  or  of  bearing  arms  until  they  have  accom- 
plished the  age  of  twenty-one  years ;  and  it  is  there- 
lore  ordained  that  the  lords  of  the  fees  shall  have  for 
all  the  intermediate  time  the  wardship  of  their  fees, 
and  all  the  profits  of  the  issues,  and  the  advowsons  of 
churches,  and  the  wardship  of  wards,  without  making 
waste  of  woods,  destruction  of  tenements,  exile  of  vil- 
lains, or  sale  of  lands. 

2.  The  same  tenant  may  be  heir  to  several  fees,  of 
which  one  is  of  more  ancient  feoffment  than  another. 
And  whereas  the  first  feoffor  or  the  lord  of  the  most 
ancient  fee  has  a  better  right  to  the  wardship  of  the 
body,  and  consequently  to  the  marriage,  by  reason  of 
the  allegiance,  than  another  later  feoffor,  it  sometimes 
happens,  where  the  last  feoffor  thinks  that  he  is  the 
first  and  has  a  greater  right,  that  he  who  has  no  right 
deforces  the  wardship  from  him  who  has  a  better 
right.  For  which  wrong  a  remedy  is  provided  by  our 
writ  of  right  of  ward,  which  is  intended  to  be  deter- 
mined by  a  simple  jury  upon  the  priority  of  feoffment 

For  frank  farms,  fee  farms,  and  frank  almoigne,  were  changed 
(translateez)  from  knights'  fees  into  socages  discharged  of  such 
foreign  service  for  a  certain  sum  by  the  year.  Ancient  de- 
meynes  were  and  are  the  king's  villenages ;  whereof  burgages 
and  sokemanries  are  changed  for  such  villenages  into  free  tenure 
(franchise)  at  a  certain  service  done  to  their  lord.  And  as 
ancient  demesnes  are  the  king's  villenages,  to  be  cultivated  and 
dealt  with  as  may  please  him  (pur  gayner  e  pur  fere  quantque 
lui  plest),  so  are  other  kinds  of  villenages  the  demesnes  of  other 
lordships.'    Note  in  MS.  N. 

22 


33S  BRITTON.  [II,  *163. 

without  buttle  or  great  assise.  *So  writs  of  right  of 
marriage  are  not  frank  tenement,  but  movable  chat- 
tels devisable  by  testament ;  the  manner  of  proceeding 
in  which  writ,  after  the  great  tlistress  awarded,  is  con- 
tained in  our  Statutes  of  Westminster, 

3.  Nevertheless  if  there  be  any  such  heirs  whose  an- 
cestors died  seised  of  any  land  held  of  us  in  chief  of  the 
ancient  fees  of  our  Crown,^  we  will  that  we  have  the 
wardship  of  all  the  lands  which  ought  to  descend  to 
those  heirs  as  their  inheritance,  with  all  the  corn  found, 
on  such  lands,  to  whose  fee  soever  the  lands  belong. 
And  if  the  ancestors  of  such  heirs  held  any  land  of 
us  in  chief  as  of  our  escheats,  or  of  our  purchases,  or 
of  our  petty  serjeanties,  or  of  our  socages,  or  of  our 
fee  farms,  in  that  case  the  custody  of  the  bodies  of 
such  heirs  during  their  tender  age  shall  remain  with 
us,  and  their  marriages  shall  be  ours  ;^  but  each  lord 
shall  have  the  wardship  of  his  own  fee  and  of  the  land 
held  of  him,  until  such  heirs  have  proved  their  age  in 
our  court,  and  have  recovered  their  inheritance  out  of 
our  hand. 

1  The  annotator  in  MS.  N.  applies  the  term  '  homage  ancestrel ' 
to  the  case  here  supposed,  and  says  that  it  was  then  to  be  pre- 
sumed (dune  deyt  hom  entendre)  that  the  tenant  or  his  ancestors 
were  enfeoffed  by  the  king  before  any  of  his  other  feoffors. 

2  There  is  some  confusion  in  this  statement ;  the  rule  tliat  the 
custody  of  the  body  and  the  marriage  belonged  to  the  king 
applied  only  where  the  land  was  held  of  the  king,  though  not  de 
corona,  by  military  service,  and  not  to  the  other  cases  mentioned 
in  the  text  of  tenants  in  socage  or  by  petty  serjeanty.  Compare 
Magna  Carta,  c.  27  ;  and  the  parallel  passage  in  Bracton. 


ir,  *ir.3  h.]  OF  AVARDSIIIR  331> 

4.  As  long  as  the  lands  of  such  heirs  remain  in  our 
hand,  we  will  that  they  be  quit  as  against  all  people 
of  suits  of  courts  and  of  all  other  services  which  may 
be  demanded  of  them  by  reason  of  their  tenements, 
and  be  quit  also  so  long  as  they  are  in  our  wardship, 
of  all  *manner  of  obligations  and  demands  which  may 
be  made  upon  them  on  account  of  their  ancestors. 
And  if  any  lands  have  been  let  to  farm  for  term  of 
years,  or  otherwise  for  a  less  term  than  term  of  life 
or  in  fee,  such  lands  being  part  of  the  inheritance  of 
the  infants,  we  will  that  the  farmers  be  ejected  from 
the  lands,  saving  to  them  their  chattels  found  thereon, 
so  that  each  lord  may  have  the  wardship  of  his  fee. 
And  when  the  heirs  shall  have  accomplished  their  age, 
then  the  farmers  shall  have  their  action  by  our  writ  of 
covenant  to  recover  the  remainder  of  their  terms,  if 
they  cannot  recover  it  without  writ. 

5.  There  are  other  kind  of  tenures,  as  petty  serjeanties, 
sokemanries,  free  farms,  fee  farms,  burgages,  ancient 
demesnes,  free  alms,  free  marriages,  and  villenages ;  to 
which  fees  no  wardship  appertains,  but  only  nurture 
by  him  who  shall  be  nearest  of  kin  to  the  heir  on  the 
mother's  side  when  the  inheritance  descends  on  the 
part  of  the  father,  or  by  the  nearest  of  blood  on  the 
father's  side  when  the  inheritance  descends  from  the 
mother.  Such  guardians  are  rather  bailiffs  than  guar- 
dians; for  if  they  do  not  render  a  lawful  account  of 
the  issues  of  such  inheritances,  at  such  time  as  the 
heirs  choose  to  require  the  same,  such  guardians  may 
be  imprisoned  and  punished  like  other  bailiffs,  accord- 


340  BRITTOX.  [II,  *1G4. 

ing  to  the  penalty  provided  in  our  statute.  *And  in 
the  case  of  such  heirs  no  certain  time  is  limited  for 
their  full  age ;  but  as  soon  as  they  have  discretion  to 
till  land,  measure  cloth,  count  money,  and  to  manage 
their  trade,  they  shall  be  deemed  of  age ;  and  the 
females  as  soon  as  they  have  attained  discretion  and 
have  learned  the  management  of  household  affairs.^ 


1  The  older  authorities  fix  fifteen  years  as  the  age  of  majority 
for  socage  tenants,  and  apply  the  shifting  test  of  '  discretion  ' 
only  to  the  children  of  burgesses  or  tenants  in  burgage.  TJie 
following  note  may  serve  in  some  measure  to  show  how  the  old 
rule  in  this  respect  was  gradually  set  aside,  and  the  age  of 
twenty-one  established  as  the  period  of  majority  for  all  classes. 
'  Of  heirs  in  socage,  the  common  age  for  males  is  sixteen  years, 
and  for  females  fourteen.  This  is  so  (Oyl),  for  liaving  and  ad- 
ministering their  inheritance  ;  but  not  for  aliening  it  conclu- 
sively (finalment)  secundam  qnosdam  :  for  they  say  that  the  writ 
of  entry  duin  fuit  infra  cetatevi  supposes  the  age  of  twenty-one 
years.  Others  say  that  this  age  is  given  for  knights'  fees  only, 
and  that  they  are  so  long  in  ward  in  regard  to  the  administra- 
tion for  fear  of  the  aliening  and  dismemberment  of  their  inlierit- 
ance.  Whence  it  follows,  he  who  by  law  (^an  and  ought  to  ad- 
minister, can  by  law  alien  ;  but  in  socage  the  tenant  at  sixteen 
years  of  age  can  and  ought  to  administer, — eadevi  ratioiie,  to 
alien.'    Note  in  MS.  N. 

Shortly  after  the  time  of  this  note,  the  question  as  to  the 
ix)wer  of  alienation  by  socage  tenants  under  twenty-one  appears 
to  have  been  settled  in  the  negative  ;  and  in  the  following  case, 
decided  13  Edw.  III.,  the  power  of  aliening  a  burgage  tenement 
before  tliat  age  is  treated  as  resting  upon  special  custom.  '  In 
dum  fuit  infra  cetatem  in  Gloucester,  the  tenant  pleaded  that  the 
usage  of  the  town  is  such,  that  when  a  man  knows  how  to  count 
V2d.  and  to  measure  an  ell  of  cloth,  he  is  of  age  to  alien  his  land, 


II,  *164.]  OF  WARDSHIP.  341 

6.  Grand  serjeanty  is  a  service  due  from  a  tenement, 
which  service  concerns  the  defence  of  the  countrv  ;  as 
to  be  Marshal  or  to  set  our  host  in  battle,  or  to  find  a 
man  mounted  and  armed  for  the  field  ;  ^  so,  to  be  the 
keeper  of  our  goshawks,^  or  other  like  great  services. 
Petty  serjeanty  is  a  service  issuing  from  a  tenement 
by  performing  to  us  ^  some  little  service,  when  we  are 

and  of  such  age  was  the  demandant  when  he  leased.  And  be- 
cause the  tenant  did  not  state  the  age  in  certain,  so  that  the  de- 
mandant miglit  answer  it,  it  was  awarded  that  the  demandant 
should  recover.'  T.  13  Ed.  III.  cited  Vet.  Nat.  Br.  128 ;  Bro. 
Abr.  Dumfuit.  3  ;  Fitzh.  Nat.  Brev.  192  H.  (note  by  Hale). 

^  As  to  the  question  whether  this  is  great  or  little  serjeanty, 
see  Lit.  Ten.  s.  157  ;  Co.  Lit.  107  a. ;  and  Butler's  Note,  ib. 

2  This  example  does  not  agree  with  the  description  of  grand 
serjeanty,  as  connected  with  the  defence  of  the  country.  Some 
of  the  manuscripts  remedy  this  inconsistency  by  reading  estours, 
or  estovers,  so  as  to  make  the  service  that  of  guardmg  the  king's 
stores  or  provisions.  Abundant  examples  of  tenure  by  the 
service  of  keeping  hawks  and  falcons  may  be  found  in  Blount's 
Tenures  by  Beckwith,  pp.  263-280.  In  one  case  at  least  (p.  275) 
the  service  was  connected  with  homage,  which  affords  some 
presumption  that  it  was  considered  a  grand  serjeanty.  (See 
Bracton  79  (§  6);  Fleta  204  (c.  16.  §  2);  207  (§  19);  Co.  Lit.  86  a). 
And  the  estates  held  by  such  services  were  frequently  of  impor- 
tance. The  lords  Grey  of  Wilton  are  stated  by  Camden  to  have 
held  their  manor  of  Acton  by  the  service  of  keeping  a  gerfalcon 
for  the  king.  Camden's  Britannia  by  Gough  vol.  i.  p.  315.  In 
later  times  such  tenures  were  classed  as  petty  serjeanties. 

3  This  passage  of  Britton  appears  to  be  the  first  authority  for 
confining  the  term  Serjeanty  to  tenures  incapite.  (See  Lit.  Ten. 
s.  161.)     In  Bracton,  serjeanty  is  a  tenure  by  a  special  or  ex- 


U2  BRITTOK  [II,  *1G4. 

about  to  take  the  field,  amounting  to  half  a  mark  or 
less,  as  are  the  services  of  bringing  to  us  in  field  a  bag, 
or  a  brooch,^  or  an  arrow,  or  a  bow  without  a  string, 
or  a  pair  of  spurs  or  gloves,  or  some  like  service, 

traordinary  service  either  to  the  king  or  any  other  lord.  And 
Britton  in  a  subsequent  chapter  speaks  of  a  grand  serjeanty  not 
lield  of  the  king  in  chief.  (Post,  c.  iv.  s.  31.)  The  words  of 
Britton  may  also  have  given  occasion  to  the  distinction  after- 
wards adopted,  by  wliich  the  term  '  petty  serjeanty  '  was  con- 
fined to  '  small  things  helonging  to  loar.'  (Lit.  Ten.  s.  159.)  The 
principal  examples  of  minor  serjeanties  in  Bracton  are  connected 
with  the  occupations  of  peace,  as  the  serjeanty  of  riding  witli 
the  lord  from  one  manor  to  another,  of  holding  the  lord's  court, 
or  of  carrying  his  precepts  (portandi  brevia).  We  may  also  see 
in  Britton's  examples  the  germ  of  Littleton's  distinction  of  great 
and  little  serjeanty,  that  the  one  ought  to  be  done  in  the  tenant's 
proper  person,  while  the  other  obliges  him  to  nothing  but  a  mere 
rendering  or  payment,  as  of  a  rent,  (Lit.  Ten.  153,  160.)  In 
Bracton,  serjeanties  are  called  great  and  little,  either  with  ref- 
erence to  their  value  (Brae.  87  6),  or  to  the  nature  of  the  duty, 
as  concerning  the  king's  army  or  the  defence  of  tlie  realm  on  the 
one  hand,  and  peaceable  services  or  duties  to  inferior  lords  on 
the  other.  (Brae.  35  b.)  And  it  would  seem  to  have  been  Brac- 
ton's  opinion,  that  all  serjeanties  in  capite,  whether  great  or 
small,  bi-ought  to  the  king  the  right  of  wardship.  (Brae.  87  h  : 
35  6,36.)  The  account  given  of  great  and  little  serjeanty  and 
their  incidents  in  the  fragment  of  law,  printed  under  the  title  of 
Statutum  de  Wardis  et  Releviis  (Stat.  temp,  incer.),  is  similar  to 
tliat  of  Britton. 

1  Thomas  Caniifex  tenet  de  domino  Rege  in  capite  maneriuni 
de  R.  in  com.  Ebor.  per  serjantiam  inveniendi  domino  Regi  in 
exercitu  in  Wallia  unum  equum,  unum  falcem,  unam  brochiam, 
et  unum  saccum,  &c. ;  et  praedictus  Thomas  in  misericordia  pro 
injusta  detentione.'    Plac.  Cor.  7  Ed.  I.  Ebor.  cited  in  Blount's 


31,  *164  h.]  OF  WARDSHIP.  343 

7.  Sokemanries  are  lands  and  tenements  which  are 
not  held  by  knight  service  or  by  grand  or  petty  ser- 
jeanties,  but  by  simple  services,  as  lands  enfranchised 
by  us  or  our  predecessors  of  our  ancient  demesnes. 

8.  Free  farms  are  lands  and  tenements,  whereof  the 
nature  of  the  fee  is  changed  by  feoffment  out  of  chiv- 
alr)'-,  to  be  held  by  fixed  yearly  services,  and  in  respect 
whereof  neither  homage, wardship,  marriage,  *nor  relief 
can  be  demanded,  nor  any  other  service  not  specified 
in  the  feofl'ment.  Fee  farms  are  lands  held  in  fee  by 
rendering  for  them  yearly  the  true  value,  or  more  or 
less ;  which  rent  if  the  feoffees  cease  to  pay  for  two 
years  together,  an  action  thereby  accrues  to  the  feoff- 
ors, or  their  heirs,  to  demand  the  tenements  in  de- 
mesne ;  for  which  tenements  neither  homage,  wardship, 
marriage,  nor  relief  can  be  demanded  without  specialty 
in  writing. 

9.  Free  alms  is  where  land  is  given  to  God,  and  to 

some  persons  serving  God,  in  pure  and  perpetual  alms, 

for  which  the  feoffors  can  demand  no  kintl  of  earthly 

service,  so  long  as  the  lands  remain  in  the  hands  of  the 

feoffees ;  the  constitution  of  which  alms  is  to  be  duly 

observed.     Land  held  in  alms  is  when  land  or  tenement 

is  given  in  alms,  some  service  being  reserved  thereout 

Tenures,  p.  49  ;  Blount's  Tenures  by  Beckwitli,  p.  137.  See  also 
Bnicton,  f.  36.  Tlie  word  hrochia,  which  in  several  services  re- 
served in  tenures  is  connected  witli  saccus,  is  conjectured  to 
mean  the  instrument,  either  a  pin,  or  a  brooch  or  buckle,  with 
wliich  the  bag  of  leather  or  canvas  was  fastened.  See  Blount's 
Tenures  by  Beckvvith,  p.  110,  133;  Ducange  Gloss,  s.  v.  broca, 
hrochia. 


344  BRITTON.  [II,  *165. 

to  the  feoffor.     And  as  it  is  of  free  alms  and  of  land 
given  in  alms  so  it  is  of  land  given  in  free  marriage. 

10.  Burgage  is  a  tenement  in  a  city  or  borough  or 
other  place  privileged  by  us  or  our  predecessors  ;  and 
such  tenements  are  devisable  according  as  they  are 
derived  by  purchase  or  inheritance,  agreeably  to  the 
custom  of  the  place. 

11.  Ancient  demesnes  are  lands  which  were  part  of 
the  ancient  manors  *annexed  to  our  Crown,  in  which 
demesnes  dwell  some  who  have  been  freely  enfeofifed 
by  charter, — and  these  are  our  free  tenants, — and 
others  who  are  free  of  blood  and  hold  land  of  us  in 
villenage, — and  these  are  properly  our  sokemen,  and 
are  privileged  in  this  manner,  that  they  are  not  to  be 
ousted  from  such  tenements  so  long  as  they  perform 
the  services  which  appertain  to  their  tenements,  nor 
can  their  service  be  increased  or  altered,  so  that  they 
shall  do  any  other  or  greater  services,  or  in  any  other 
way  than  as  they  have  been  used  to  do.  And  because 
such  sokemen  are  the  tillers  of  our  lands,  we  will  that 
they  be  not  summoned  anywhere  to  toil  in  juries  or  in- 
quests, except  in  the  manors  to  which  they  belong. 
And  because  we  will  tliat  they  enjoy  such  immunity, 
the  writ  of  right  close  is  provided,  which  is  pleadable 
before  the  bailiff  of  the  manor  for  a  wrong  done  hy  one 
sokeman  to  another,  that  bailiff  may  do  the  plaintiff 
right  according  to  the  custom  of  the  manor  by  means 
of  simple  inquests.  Nevertheless  we  will  that  in  pleas 
of  trespass  and  other  personal  actions,  sokemen  besura- 
monable  and  answerable  as  well  as  others. 


II,  noo  h.-]  OF  AVARDSHIP.  345 

12.  Villenage  is  a  tenement  of  the  demesne  of  any 
lord,  delivered  to  be  held  at  his  will  by  villain  services, 
to  be  cultivated  for  the  use  of  the  lord,  and  whereof 
livery  is  given  by  the  rod  and  not  by  title  of  deed  or 
by  succession  of  inheritance.  Neither  wardship  nor 
marriage  nor  other  real  services,  as  homage  and  relief, 
can  be  demanded  from  ancient  demesne  or  villenages. 
*In  the  same  manors  of  our  ancient  demesnes  there 
are  also  pure  villains  both  by  blood  and  by  tenure,  who 
may  be  ousted  from  their  tenements  and  deprived  of 
their  chattels  at  the  will  of  their  lords, 

13.  It  sometimes  happens  that  women  at  the  time 
of  the  death  of  their  husbands  feign  themselves  with 
child  by  their  husbands  when  in  fact  they  are  not,  to 
the  great  damage  of  the  heirs;  in  Avhich  case  Ave  will 
that  the  following  remedy  be  ordained.  When  any 
one  complains  of  such  discreet,  he  shall  have  our  writ 
to  the  sheriff  of  the  district,  commanding  him  without 
delay  to  cause  to  come  before  him  and  before  the 
coroners  in  full  county  court  the  woman  against  whom 
the  complaint  is  made  ;  and  it  shall  be  inquired  of 
her,  whether  she  be  with  child,  and  by  whom ;  and  if 
she  says,  by  her  husband  who  is  dead,  the  sheriff  shall 
forthwith  cause  to  come  discreet  and  lawful  women  to 
the  number  of  six  at  least,  who  are  to  be  sworn  upon 
the  holy  Evangelists,  that  they  will  lawfully  act  and 
true  presentment  make  of  the  articles  wherewith  they 
shall  be  charged  on  our  behalf.  Then  let  them  be 
charged  that  they  upon  their  oath  search  the  w^oman 
who  pretends  to  be  with  child  by  handling  her  belly 


3-i6  BRITTON.  [II,*1(;6. 

and  her  breasts,  and  using  all  other  means  whereby 
they  may  be  certified  whether  she  is  with  child  or 
not.  Then  they  shall  take  her  privately  into  a  house, 
and  inquire  into  the  truth. 

*14.  If  the  women  declare  that  she  is  with  child,  or 
they  are  in  doubt  whether  she  be  or  not,  then  the 
sheriff  shall  cause  the  woman  to  be  placed  in  our  castle 
or  elsewhere  in  safe  custody,  so  that  no  woman  or 
other  person  who  may  be  suspected  of  any  fraud  have 
access  to  her  ;  and  there  she  shall  remain  at  her  own 
charge  till  the  time  when  she  should  be  delivered,  and 
no  woman  in  the  meantime  shall  go  near  her,  unless 
she  be  of  the  lineage  of  the  plaintiff.  And  if 
she  have  not  a  child  within  fortv  weeks  after  the 
death  of  her  husband,  or  if  she  is  not  found  to  be 
Avith  child,  let  her  be  punished  by  imprisonment 
and  fine ;  and  the  chief  lords  of  the  fees  shall 
forthwith  take  the  homage  of  the  heir  without  further 
delay. 

15.  If  she  is  delivered  of  a  child  within  the  forty 
weeks,  the  child  shall  be  admitted  to  the  inheritance, 
unless  the  next  heir  can  prove  that  such  child  was 
begotten  by  another  man  than  her  husband,  as  if  he 
show  that  the  husband  was  impotent,  or  that  he  was 
in  prison  or  in  another  kingdom  for  two  or  three  years 
before  the  child  was  born,  and  remained  so  until  after 
the  birth,  without  coming  near  his  wife,  or  aver  some 
other  apparent  presumption  notorious  to  everybody. 
For  in  such  cases  we  will  not  that  the  right  heirs  shall 
be  disinherited  by  the  wife's  adultery. 


II,  *166  k]  OF  WARDSHIP.  347 

*1G.  If  two  brothers,  or  other  persons,  offer  them- 
selves to  do  homage  to  their  lord  for  the  same  inherit- 
ance, and  one  of  them  was  born  in  marriage  and  the 
other  before  marriage,  we  will  that  in  such  case  the  lord 
shall  admit  to  the  inheritance  him  who  was  born  within 
marriage,  although  he  be  younger  than  the  other.  And 
if  any  heir  offer  himself  to  do  homage  to  his  lord  for 
the  inheritance  of  his  ancestor,  whose  father  and 
mother  were  divorced  by  holy  church  by  reason  of  the 
marriage  between  them  being  found  unlawful,  the  lord 
shall  not  upon  that  account  fail  to  take  the  homage  of 
such  children  begotten  in  marriage,  whether  the  mar- 
riage was  lawful  or  unlawful. 

17.  If  any  heir  is  begotten  by  another  than  the 
husband  of  his  mother,  that  is  to  say,  at  a  time  when 
it  may  be  presumed  that  the  husband  might  have 
begotten  the  child  in  matrimony,  we  will  not  that  the 
adultery  of  the  mother  be  a  bar  to  the  inheritance  of 
the  child.  So,  Avhere  a  child  begotten  by  another  and 
imposed  upon  the  husband  as  his  issue,  is  brought  up 
by  the  husband  and  owned  by  him  as  his  heir,  we  will 
that  such  children  be  admissible  to  the  inheritance,  if 
it  may  be  presumed  that  the  husband  of  the  mother 
may  have  begotten  them.  But  if  the  husbands  of  such 
wives,  who  bring  up  as  their  lawful  heirs  children  that 
were  begotten  by  others  than  the  husbands,  were 
hindered  by  manifest  infirmity  or  distance  of  place  and 
time,  so  that  evident  presumption  and  common  fame, 
as  before  mentioned,  operates  against  the  husbands 
having    been    capable    of    begetting    those  children, 


aiS  BRITTON.  [II,  *167. 

*although  they  choose  to  bring  them  up  in  their  houses 
and  to  acknowledge  them  as  their  own,  yet  such 
children  shall  not  be  admissible  to  the  inheritances. 
Neither  shall  those  whom  husbands  shall  find  in  their 
houses  begotten  by  others,  and  whom  they  shall  straight- 
way remove  out  of  their  houses  and  disown  as  their 
issue.  Therefore  we  will "  that  every  one  in  such  case 
do  openly  disown  and  straightway  cause  to  be  removed 
such  supposititious  issue,  as  soon  as  he  shall  know  of  it. 
For  after  he  has  once  owned  the  child  to  be  his,  and 
this  fact  is  testified  by  the  neighbourhood,  he  may 
never  after  disown  it. 

18.  And  if  a  complaint  come  before  us  from  any 
right  heir  concerning  a  supposititious  child  so  brought 
up  and  acknowledged  as  heir  by  any  husband  and  his 
wife  to  the  disherison  of  the  right  heir,  we  will 
straightway  command  the  sheriff  of  the  county,  at  the 
suit  of  the  plaintiff,  that  he  have  the  bodies  of  such 
husband,  and  of  such  a  one  his  wife,  and  of  such  child 
whom  they  are  bringing  up,  before  our  Justices  at  a 
certain  day  and  place  to  answer  to  such  plaintiff,  who 
alleges  himself  to  be  heir  to  the  same  husband,  why 
they  do  in  disherison  of  the  plaintiff  bring  up  the 
aforesaid  child  and  own  him  for  their  issue,  which  he 
is  not.  At  which  day  it  will  be  necessary  for  the 
plaintiff  to  show  some  presum])tions  in  his  favour 
to  make  good  his  charge;  Vvhich  if  he  cannot  do, 
it  shall  be  adjudged  against  him.  And  if  by  the 
proceedings  in  the  plea  between  the  parties  judgment 
be  given  against  the  infant  and  for  the  plaintiff,  the 


II,  *ir,7  h.']  OF  WAEDSHIP.  349 

malice  of  the  husband  and  of  his  wife  shall  be  punished 
by  imprisonment  and  fine. 

*19.  And  if  any  child  which  is  born  a  monster, — as 
one  that  has  more  than  the  proper  number  of  members,^ 
as  three  hands  or  three  feet,  or  a  deficiency  in  the 
same,  as  no  hands  or  no  feet, — demands  the  inheritance 
of  his  ancestor,  such  children  shall  not  be  admissible 
to  any  inheritance,  or  accounted  as  children,  but  as 
beasts  and  monsters.  Wherefore  no  one  who  has 
begotten  them  can  by  such  issue  claim  title  of  freehold 
in  the  inheritance  of  his  wife  by  virtue  of  the  law 
of  England. 

20.  And  whereas  it  sometimes  happens  that  the  heir 
is  an  idiot  from  his  birth  whereby  he  is  incapable  of 
taking  care  of  his  inheritance,  we  will  that  such  heirs, 
of  whomsoever  they  hold,  and  whether  they  be  male  or 
female,  remain  in  our  custody,  with  all  their  inherit- 
ances, saving  to  every  lord  all  other  services  belonging 
to  him  for  lands  held  of  him,  and  that  they  so  remain 
in  our  wardship  as  long  as  they  continue  in  their  idiocy. 
But  this  rule  shall  not  hold  with  regard  to  those  who 
become  insane  by  any  sickness. 

21.  When  any  one  who  has  been  in  ward,  and  who 
ought  to  hold  of  us  in  chief,  has  reached  the  age  of 
twenty-one  years,  if  he  demand  the  inheritance  out  of 

1  Bracton  repeats  in  all  the  passages  above  cited,  that  an  in- 
crease or  decrease  in  the  number  of  members  not  affecting  the 
human  form  of  the  offspring,  as  where  a  child  is  born  with  six 
fingers  on  one  hand,- or  only  four,  does  not  affect  its  rights,  See 
Digest,  li.  i.  tit.  6.  1.  14. 


350  BRITTON.  [II,  *108. 

our  hands,  or  if  any  other  heir  of  whatever  age  he  be 
do  the  like,  such  persons  must  first,  by  solemn  inquests 
taken  by  virtue  of  our  writs,  prove  their  age  by  their 
kindred  *and  by  other  lawful  people  of  the  neighbour- 
hood where  they  were  born, — to  wit,  whether  they  are 
of  the  full  age  of  twenty-one  years  or  not,  and  whether 
they  are  next  heirs. 

22.  And  if  any  one  proves  his  age  by  good  inquest 
sealed  under  the  seals  of  the  jurors  and  returned  into 
our  Chancery  to  be  safely  kept,  then  we  will  that  he 
perform  homage  and  swear  fealty  to  us,  and  obtain 
our  writ  to  our  escheator  or  to  our  sheriff,  that  he 
cause  him  to  have  seisin  of  the  lands  which  were  in 
our  hand,  by  the  death  of  the  ancestor  of  such  heir,  in 
his  bailiwick.  But  if  our  escheator  or  sheriff  perceives 
that  fraud  has  been  practised  upon  us  in  the  aforesaid 
proof,  he  shall  defer  the  delivery  of  seisin  until  we  have 
taken  an  attaint  against  the  twelve  first  jurors.  And 
if  they  are  attainted  of  a  false  oath,  let  them  be 
punished  as  shall  be  mentioned  in  the  chapter  concern- 
ing attaints.  And  if  they  have  been  falsely  accused, 
let  the  accuser  be  punished  by  imprisonment  and  fine, 
which  may  be  great  or  small  in  proportion  to  the 
malice  of  the  offender. 

23.  Wiien  the  heir  has  obtained  the  seisin  of  the 
lands  held  of  us,  let  him  straightway  have  seisin  of  his 
lands  held  of  the  fees  of  others,  without  making  fine 
to  the  lords,  and  without  giving  anything  of  his  goods 
except  his  reliefs.  And  when  he  shall  recover  the 
seisin  of  his  inheritance  out  of  the  hands  of  others,  wo 


II,  *168  h.]  OF  MAERIAGE.  351 

will  that  his  lands  shall  be  delivered  up  to  him  stocked 
with  ploughs  and  other  stock  at  least  as  well  as  the 
lords  found  them,  *And  if  the  lords  make  waste,  sale, 
destruction,  or  exile  in  such  inheritances,  before  the 
heirs  have  proved  their  age,  then  the  heirs  may  be 
aided  either  by  Our  writs  of  trespass  or  of  waste,  or  by 
assise  of  novel  disseisin,  to  be  brought  by  themselves 
or  their  friends  according  as  is  contained  in  our 
statutes,  in  which  the  penalties  are  ordained.  All 
guardians  shall  however  be  excused  from  liability  in 
respect  of  accident  by  fire  or  water,  or  other  like 
waste,  where  they  shall  not  be  guilty  of  any  malice. 


CHAPTER  III. 
Of  Marriage. 

1.  When  any  one  holding  of  us  in  chief  shall  die, 
leaving  a  male  heir  of  full  age,  we  will  that  such  heir 
may  marry  where  he  pleases  without  paying  a  fine  to 
us  or  to  any  other.  But  if  such  heir  be  under  age, 
then  the  marriage  of  him  shall  belong  to  us,  and  he 
may  not  raarrj^  without  our  leave  under  pain  of  heavy 
forfeiture. 

2.  With  respect  to  female  heirs,  where  an  inherit- 
ance wholly  or  partly  held  of  us  in  chief  descends  to 
several  daughters  or  their  issue,  as  one  heir,  the  eldest 
shall  do  homage  to  us  for  all  her  parceners,  and  the 
others  shall  do  homag-e  to  the  eldest.     We  will  never- 


352  BPJTTOX.  [I,  *169. 

theless  have  the  marriages  of  them  all  of  whatever  age 
they  may  be,  as  often  as  they  are  to  be  married,  so 
that  they  cannot  be  married  without  our  leave.  This 
prohibition  was  first  made,  lest  the  female  heirs  of  our 
land  *should  marry  with  our  enemies,  whose  homage 
we  should  then  be  obliged  to  take,  if  the  heirs  might 
marry  at  their  will. 

3.  With  respect  to  marriages  belonging  to  others 
than  us,  we  will  that  the  lords  give  or  offer  marriages 
to  the  heirs  male  before  they  have  completed  their 
age.  And  if  they  have  not  tendered  them  marriage 
while  under  age,  then  the  lords  shall  be  barred  of  any 
action  to  demand  anything  for  their  marriage.  But  if 
the  lords  have  tendered  them  marriage  without  dis- 
paragement, and  the  heirs  will  not  consent  thereto, 
the  penalty  provided  in  our  statute  shall  take  effect. 
Marriages  shall  be  tendered  to  female  heirs  before 
they  be  fourteen  years  old,  otherwise  the  lords  shall 
be  debarred  of  their  right.^ 

4,  If  any  female  heir  of  tender  years  be  married 
where  she  is  disparaged,  then  we  will  that,  if  she  was 

^  Our  author  omits  to  state  the  modification  of  the  law  intro- 
duced by  the  Statute  of  Westminster  I  (3  Ed.  I.  c.  22),  by  which 
the  right  was  granted,  or  confirmed,  to  lords  to  retain  the  ward- 
ship of  female  heirs  for  two  years  after  they  had  reached  the 
age  of  fourteen  years,  and  to  offer  them  a  suitable  marriage 
within  that  time.  If  the  heiress  refused  the  marriage,  the  lord 
might  hold  the  lands  till  she  attained  twenty-one,  and  for  a 
further  time  until  he  had  received  the  value  of  tlie  marriage. 
Cf.  Littleton,  Tenures,  s.  103  ;  Coke  Lit.  79  a  ;  3  Inst.  202  ;  Lord 
Darcie's  Case,  6  Co.  Rep.  71. 


II,  *169  h.]  OF  MARRIAGE.  353 

of  fourteen  years  or  upwards,  so  that  she  was  able  to 
consent  to  marriage,  no  penalty  shall  be  incurred  ;  but 
if  she  was  under  that  age,  the  penalty  shall  be  this, 
that  the  lord  shall  lose  the  wardship  for  that  time, 
and  make  satisfaction  to  the  friends  of  the  person  so 
married,  and  that  all  the  profit  received  for  the 
marriage  shall  be  restored  to  the  friends  and  kindred 
of  the  woman,  to  be  improved  for  her  use.  *And  if  she 
be  married  to  any  of  his  villains,  the  lord  who  gave 
her  away  shall  be  punished  by  imprisonment,  until 
due  amends  be  made  by  appointment  of  the  kindred 
of  the  wife  ;  and  such  persons  shall  afterwards  be  put 
to  ransom  for  the  malice. 

5.  We  forbid  any  lord  to  force  an  infant  in  his  ward, 
male  or  female,  to  take  wife  or  husband.  And  when 
any  heirs,  male  or  female,  have  once  been  married  by 
their  lords  in  whose  wardship  they  were,  or  have  once 
made  satisfaction  for  their  marriage,  if  they  be  to 
marry  again,  they  shall  for  ever  after  be  at  their  own 
disposal,  provided  they  hold  nothing  of  us.  So  also, 
where  they  have  been  married  in  the  lifetime  of  their 
fathers.^ 

1  '  An  infant  under  age,  married  in  the  life  of  his  ancestor, 
comes  into  ward  of  his  lord.  His  wife  dies.  His  lord  tenders 
him  another  wife,  whom  he  refuses.  Qu.  Whether  forfeiture  of 
marriage  lies  or  not.  Surely  not ;  for  no  force  of  law  can 
compel  the  heir  to  be  bigamous.'  (Note  in  MS.  N.)  This  ques- 
tion is  resolved  in  the  same  way  by  Babington,  the  king's 
attorney,  in  the  seventh  year  of  Henry  VI,  the  same  reason  being 
given. — '  Par  le  prise  del  seconde  feme  efficitur  bigamus,  a  qe  la 
Ley  ne  luy  coherte.'    So  Vet.  Nat.  Brev.  93.  b.     But  if  the  heir 

23 


35^  BRITTOK  [II,  *170. 

6.  When  two  or  more  lords  claim  the  marriage  of  one 
infant,  it  is  impossible  for  all  of  them  to  have  it,  al- 
thouo-h  the  ancestors  of  such  infant  mav  have  held  of 
all  by  knight  service  ;  in  which  case  let  it  be  adjudged 
according  to  the  priority  of  the  feoffments,  so  that  the 
raarriaffe  shall  be  awarded  to  that  lord  bv  whose  an- 
cestor  the  earliest  feoffment  shall  be  found  to  have 
been  made  ;  and  let  the  deforceor  be  punished  accord- 
ing to  the  tenor  of  our  statutes.  If  no  priority  of  feoff- 
ment is  found  by  the  inquest,  as  where  the  ancestor  of 
the  infant  purchased  of  all  the  lords  atonceatthe  time 
of  the  Conquest,  or  in  like  cases,  the  judgment  shall  be 
in  favour  of  him  who  shall  be  in  seisin  of  the  infant. 

*7.  Where  any  one  who  has  no  right  has  seised  the 
body  of  the  heir  within  age,  and  sold  the  marriage  of 
such  infant  to  another,  and  he  is  impleaded,  in  such  case 
the  person  impleaded  may  vouch  to  warrant,  so  that 
each  offender  may  bear  the  penalty  of  his  own  trespass. 

was  married  by  his  ancestor,  infra  annus  nubiles,  and  the  wife 
died  before  the  age  of  consent,  tlielord,  it  is  said,  should  have  the 
marriage.  (Y.  B.  7  Hen.  VI.  f.  11  b.)  This  latter  statement  is 
adopted  by  Fitzherbert  (Nat.  Brev.  143  M.),  and  Coke  (Co.  Lit. 
79.  b.)  It  will  be  I'emembered  that  bigamy  (in  the  ancient  and 
proper  sense  of  the  word)  involved  the  loss  of  the  benefit  of 
clergy.  (See  Ante,  1.  1.  c.  5.  s.  5,  p.  28.)  On  this  account  it  was, 
according  to  Lord  Coke,  a  disparagement  for  a  lord  to  marry  an 
heir  to  a  widovt-,  '  whereby  he  should  by  reason  of  the  bigamie 
have  lost  the  benefit  of  his  cleargie,  whereby  he  might  save  his 
life.'     (Co.  Lit.  80.  b.) 


11  ^170.]  OF  HOMAGE.  355- 


CHAPTER  IV. 
Of  Homage. 

1.  Homage  is  a  legal  bond,  whereby  a  person  is 
bound  and  obliged  to  warrant,  acquit,  and  defend  his 
tenant  in  his  seisin  against  all  persons  for  the  services 
due  from  the  tenements  which  he  holds  of  him,  and 
whereby,  on  the  other  hand,  the  tenant  is  obliged  and 
bound  to  return  to  perform  to  his  lord  the  services  due 
from  the  tenement,  which  he  holds  of  him,  in  service 
or  in  demesne,  and  to  keep  his  faith  towards  hiin  in- 
violate. And  the  lord  is  thereby  as  much  bound  to' 
his  man  as  the  man  is  to  his  lord,  reverence  only  ex- 
cepted. 

2.  Nevertheless  if  any  one  be  vouched  by  reason  of 
homage,  and  the  lord  offers  to  prove  that  the  tenement 
for  which  he  is  vouched  was  transferred  from  the  blood 
of  the  first  purchaser  by  feoffment  or  some  other  con- 
veyance, in  such  case  the  tenement  shall  be  charged  to- 
vouch  his  feoffor  or  the  feoffor  of  his  ancestors.^ , 

1  Note,  that  homage  ancestral,  and  liomage  purchased  by 
attornment  made  in  the  king's  court,  give  warranty  and,  none 
other,  without  an  especial  clause  of  warranty,  or  what  is  equiv- 
alent thereto,  as  the  word  dedi ;  as,  where  B  held  of  A  by  homage 
before  the  statute  [Stat.  Quia  Eraptores,  18  Ed.  I.],  and  after- 
wards has  given  the  land  to  another,  doing  the  services  to  the 


356  BRITTON.  [II,  170  I. 

3.  Homage  binds  two  persons  by  their  mutual  con- 
sent ;  and  by  their  mutual  consent  it  may  be  released 
and  undone,  but  not  by  the  assent  of  one  of  them 
only. 

*4.  When  any  heir  is  desirous  of  being  admitted  to 
the  inheritance  of  his  ancestor,  and  there  is  no  doubt 
of  his  being  the  nearest  heir,  we  Avill  that  he  in  the 
first  place  do  homage  to  his  lord,  or  offer  to  do  it, — in 
respect  that  is  to  say,  of  his  lands  held  by  knight's  serv- 
ice,— and  that  the  lord  receive  his  homage,  unless  there 
is  a  reasonable  impediment.  This  may  arise  in  the 
case  of  homage  tendered  for  a  fee  not  held  by  knight's 
service  or  grand  serjeanty,  except  where  the  custom 
of  the  place  is  contrary ;  and  sometimes  on  account  of 
the  condition  of  the  tenants,  as  where  the  hol4  is 
villenage. 

5.  On  the  part  of  the  tenant  again,  homage  is  some- 
chief  lord.  For  all  purchases  are  now  made  by  dedi,  and  with 
an  especial  clause  of  warranty  ;  and  the  purchaser  may  thus 
vouch  the  feoffor  or  liis  heirs,  who  are  bound  to  warranty  by 
deed.  Therefore  he  who  holds  by  specialty  ought  to  vouch  by 
specialty,  and  he  who  holds  by  homage  ancestral,  ought  to  vouch 
by  the  same.  And  note,  that  homage  is  ancestral  from  tlie  time 
of  the  Conquest,  or  before  the  limitation  of  the  writ  of  right,  or 
from  the  great  grandfather  of  the  lord,  of  whom  the  great  grand- 
father of  the  tenant  held,  and  so  from  heir  to  heir  on  eacli  side. 
When  there  are  fewer  degrees,  the  tenant  cannot  vouch  by 
liomage  without  specialty.'  (Note  in  MS.  N.)  Cf.  ante.  liv.  ii. 
cap.  3.  8.  8.  See  the  later  doctrine  as  to  homage  ancestral  in 
Littleton,  Ten.  Sect.  143-152,  with  Coke's  Commentary,  Co.  Lit. 
100.  b.    See  also  2  Inst.  275. 


II,  *17Lj  OF  HOMAGE.  357 

times  refused,  and  that  rightly,  as  where  the  lands  are 
given  in  free  alms,  or  are  held  by  petty  serjeanties  or 
by  free  socage  ;  and  sometimes  on  account  of  the  per- 
sons of  the  lords,  as  where  they  have  married  female 
heirs,  and  demand  the  homage  in  their  own  names, 
whereas  their  wives  ought  to  demand  it ;  so  likewise 
where  the  lords  demands  homage  before  their  tenants 
are  in  seisin,  or  before  they  are  themselves  seised  of 
their  inheritance  ;  and  when  it  is  demanded  by  those 
who  have  no  right  to  demand  homage,  as  termors  and 
others. 

6.  When  an  inheritance  descends  to  any  heir  who 
holds  of  us  and  of  several  others,  in  such  case  the  alle- 
giance of  the  seigniory  shall  belong  to  us,  and  we  shall 
not  be  barred  by  reason  of  the  priority  of  any  other 
feoffor.  But  if  such  heir  does  not  hold  of  us,  the  alle- 
giance of  the  seigniory  shall  belong  to  that  lord  who 
has  the  best  rio^ht  to  his  marriage. 

*7.  Whereas  damage  might  accrue  to  us  and  other 
lords  of  fees  in  course  of  time,  if  several  persons,  to 
whom  an  inheritance  descends  as  to  one  heir,  should 
perform  their  services  to  the  lords  according  to  their 
portions,  we  will  that  every  lord,  if  he  pleases,  may 
take  the  homage  of  all  the  parceners,  male  and  female, 
as  of  one  heir,  such  homage  being  considered  as  only 
one  homage  by  reason  of  the  unity  of  right,  so  that  no 
lord  may  lose  the  wardship  or  marriage  of  any  tenants 
in  chivalry  of  his  fee  ;  but  that  one  of  the  parceners 
may,  if  the  lord  choose,  swear  the  fealt}"-  to  perform  to 
him  the  services  of  the  whole    inheritance,    so    that 


358  BRITTOK  [II,  *1T1  h. 

neither  we  nor  any  other  may  receive  the  services  of 
our  fees  by  parcels  nor  by  different  hands  ;  ^  and  in 
such  case  the  other  parceners  shall  do  fealty  and 
the  services  of  their  portions  to  their  chief  par- 
ceners. 

8.  Although  an  infant  under  age  do  homage,  yet  we 
will  not  have  him  take  the  oath  of  fealty  until  he  be  of 
full  age.  And  although  it  is  commonly  said,  that  the 
act  of  an  infant,  done  under  age,  ought  not  to  be  held 
binding,  yet  we  will  that  every  man  and  woman  ad- 
missible to  an  inheritance,  of  what  age  soever  they 
be,  do  homage  to  their  lords  according  to  the  statute 
•of  the  Great  Charter  ;  *so  that  the  lords  shall  not  have 
the  profits  of  wardships  or  marriages  on  the  one  hand 
without  being  bound  to  the  risk  of  warranties  on  the 
other, 

-  9.  All  those  who  hold  by  knight's  service  in  their 
own  names  may  do  homage ;  but  persons  in  religion, 
and  clerks,  and  others  holding  in  others'  names,  ought 
not  to  do  homage  for  the  tenements  so  held,  as  in  the 
case  of  tenements  which  they  hold  in  the  names  of 
their  churches,  where  the  persons  are  named  last  in  the 
feoffments,  as  appears  by  the  charters,  which  begin 
thus  :  I  give  to  God  and  the  church  of  such  a  place, 
and  to  the  persons  therein  serving  God.     In  these  gifts 

1  It  appears  from  a  subsequent  section,  that  it  was  not  con- 
sidered altogether  safe  for  a  lord  to  avail  himself  of  the  riglit  of 
taking  the  entire  service  by  the  hands  of  the  eldest  parcener, 
inasmuch  as  his  title  to  the  vs^ardship  of  the  descendants  of  the 
junior  parcener  might  be  thereby  endangered.     See  below,  s.  23. 


II,  *1T2.]  OF  HOMAGE.  359 

therefore  the  feoffment  is  made  first  to  God  and  his 
Church  and  afterwards  to  the  persons  therein  serving 
God.  Which  persons  cannot  do  any  homage,  but  only 
take  the  oath  of  fealty.  And  such  persons  do  some- 
times make  a  payment  to  their  lords  of  double  the 
yearly  value  of  their  services  at  the  end  of  every  thirty 
years,  in  remembrance  of  relief,  as  is  the  common 
custom  in  Normandy. 

10.  He  who  is  to  do  homage  ought  to  seek  out  his 
lord  from  reverence  to  him ;  and  when  he  has  found 
him  let  him  tender  his  homage,  with  his  hands  clasped, 
before  good  people,  who,  if  there  be  occasion,  may  bear 
W'itness  thereof.  If  the  lord  refuses  to  take  his  hom- 
age, let  him  seek  him  again  fifteen  days  after,  and  ten- 
der it  to  him  as  before,  and  so  for  three  times.  *And 
if  he  wrongfully  refuse  it  three  times  by  the  testimony 
of  good  people,  then  we  will  that  the  lords  be  foreclosed 
of  such  homage,  and  that  the  tenants  may  perform 
their  homage  to  the  superior  lords  of  the  fees.  And 
when  another  lord  has  thus  received  his  homage,  we 
will  that  the  services  be  performed  to  him  ;  and  yet,  if 
the  tenant  be  impleaded  concerning  his  tenement,  the 
first  lord  shall  be  bound  to  warranty.  And  if  the  next 
superior  lord  refuse  his  homage,  let  it  be  tendered  from 
lord  to  lord  until  it  comes  to  us  ;  which  homage  we 
may  safely  take. 

11.  If  any  lord  fraudulently  refuses  or  ddlays  to  take 
the  homage  of  his  tenant,  in  order,  perchance,  that  lie 
may  not  be  held  to  warranty,  the  tenant  in  such  case 
may  keep  back  relief  and  all  kinds  of  services  due  from 


360  BKITTOK  [II,  *172  h, 

him  to  the  lord  until  he  has  taken  his  homage,  so  that 
the  lord  shall  have  no  seigniory  over  him  until  he  has 
received  him  as  his  tenant ;  and  no  tenant  in  such  case 
shall  be  obliged  to  make  satisfaction  for  arrears  of  serv- 
ices before  the  homage  has  been  received. 

12.  And  if  such  tenants  are  not  willing  to  transfer 
their  homage  to  another  lord,  let  them  be  aided  by  our 
writ  to  the  sheriff  of  the  county,  *to  command  the  lord 
that  he  justly  and  without  delay  take  the  homage  of 
such  a  one  who  holds  or  claims  to  hold  of  him  by 
knight's  service  ;  and  that,  if  he  omits  doing  it,  he  be 
at  a  certain  day  and  place  before  our  Justices  to  show 
cause  why  he  has  not  done  it.  At  which  day  both 
may  be  essoined  ;  and  if  the  lord  make  default,  the 
process  against  him  shall  be  by  great  distresses,  as  in 
personal  pleas,  until  he  shall  a])pear. 

13.  When  the  lord  appears  and  has  to  answer  to  the 
action  of  the  plaintiff,  he  may  say  that  he  refused  to 
take  his  homage,  because  he  is  not  next  heir  to  the  an- 
cestor whose  heir  he  claims  to  be,  inasmuch  as  he  has 
an  elder  brother  alive  beyond  sea  or  elsewhere,  who  is 
nearer  heir  to  the  same  ancestor ;  or  because  he  is  a 
bastard  ;  or  because  he  is  the  feoffee  of  one  who  has 
committed  felony,  or  who  is  appealed  of  a  felony  from 
which  judgment  of  death,  outlawry,  or  abjuration  may 
ensue,  and  which  feoffor  is  still  living ;  or  by  reason 
that  he  or  some  of  his  ancestors  entered  into  the  tene- 
ments which  he  claims  to  hold  of  him  by  a  defective 
entry,  as  by  intrusion,  disseisin,  or  by  default  after 
default  made  in  our  court,  or  by  means  of  one  who 


II,  *173.]  OF  HOMAGE.  361 

belt!  the  tenements  for  terra  of  life,  or  in  villenage,  or 
at  Avill,  or  for  terra  of  years,  or  in  raortgage,  or  in  fee 
tail,  or  in  ward,  or  by  means  of  a  bailiff,  or  in  like 
cases ;  or  because  tbe  teneraent  for  which  he  tendered 
homage,  was  given  in  marriage,  and  therefore  he  ex- 
pects the  reversion  until  the  appearance  of  heirs ;  or 
because  the  tenant  has  no  heir  of  his  body,  *wherefore 
the  defendant  contends  that  the  tenant's  portion  ought 
still  to  accrue  to  hira  if  the  tenant  should  die  without 
any  heir  of  his  own  j  ^  or  because  this  same  tenant  has 
done  some  act  by  which  the  lord  is  discharged  from 
receiving  his  homage ;  and  such  exceptions,  if  true, 
shall  be  allowed. 

14.  Therefore  it  behoves  every  lord,  before  he  takes 
the  homage  of  his  tenant,  to  examine  whether  he  is 
the  right  heir,  and  concerning  all  the  circumstances 
named  in  the  above  exceptions,  and  that  he  know  for 
what  tenement  and  for  how  much  he  ought  to  take 
homage,  and  of  how  much  the  tenant  is  seised  in  de- 

1  These  two  justifications  of  refusal  of  homage  refer  to  the  two 
cases  of  tenants  in  frank-marriage,  and  co-parceners  ;  the  feoffor 
in  the  one  case  and  the  elder  parcener  in  the  other  being  justified 
in  refusing  the  homage  until  the  third  generation.  See  Glan.  li. 
7.  c.  3  ;  li.  9.  c.  3  ;  Brae.  21,  21  6 ;  Fie.  190,  191.  The  reason  of 
this  was,  that  the  acceptance  of  homage  might  prejudice  his 
right  of  succession  to  the  inheritance,  upon  the  principle  laid 
down  in  Glanville  :  '  Nemo  potest  simul  esse  haeres  et  dominus.' 
See  Glan.  li.  7.  c.  1,  Compare  Littleton's  Tenures,  s.  19,  20, 
where  it  appears  that  in  later  times  the  tenant  in  frank-marriage 
was  quit  of  all  service,  except  fealty,  until  the  succession  of  the 
issue  in  the  fifth  degree. 


362  BRITTOX.  [11,  *173&. 

mesne,  and  of  bow  much  in  service,  so  that  no  one  may 
be  deceived  as  to  the  risk  which  he  runs  in  respect  of 
warranty. 

15.  Again,  the  lord,  when  be  comes  into  court,  in 
answer  to  the  allegation  of  the  plaintiff,  that  his 
father  held  of  him  and  did  homage  to  him,  or  to  his 
father  or  othei*  ancestor,  by  such  certain  services,  may 
say  that  be  held  nothing  of  him,  nor  did  any  homage 
to  him,  nor  ought  to  hold  any  tbing  of  him.  And  if  he 
offers  to  make  this  good  by  his  champion,  he  shall  be 
admitted  thereto  if  the  tenant  chooses  to  accept  it ;  but 
if  he  chooses  to  put  himself  upon  the  great  assise,  it 
shall  be  cbarged  to  say,  whether  tbe  lord,  of  whom  the 
tenant  complains,  has  the  better  right  to  bold  the  tene- 
ment in  demesne,  or  the  tenant  to  hold  it  of  him.  For  it 
may  well  be,  that  the  plaintiff  or  his  ancestor  did  hom- 
age to  tbe  ancestors  of  the  same  person  of  whom  he 
complains,  and  yet  never  had  seisin  of  the  tenement  or 
of  the  fee  for  which  they  performed  the  homage  ;  *or  if 
they  had  seisin,  yet  they  bad  it  by  their  own  intrusion, 
and  not  by  induction  of  any  feoffor  at  a  time  when  the 
tenement  was  vacant ;  in  which  case  homage  may  law- 
fully be  refused,  on  account  of  the  right  of  action  which 
tbe  lord  has  to  demand  the  tenement  in  demesne  by 
reason  of  tbe  defective  entry  of  the  tenant  or  bis  an- 
cestors. 

16.  When  any  tenant  resists  doing  homage  to  bis  lord, 
the  lord  should  distrain  for  tbe  arrears  of  tbe  services 
if  any  are  due.  And  if  the  tenant  causes  the  distress  to 
be  replevied,  the  lord,  where  he  cannot  count  of  his 


ll,*l7Sk]  UF  HOMAGE.  3G3 

own  seisin,  shall  have  his  remedy  by  writ  of  customs 
and  services.^  And  if  the  tenant  has  sworn  fealty  to 
his  lord,  although  he  has  done  no  other  service  to  him, 
he  cannot  disclaim  holding  of  his  lord  in  any  court  of 
record,  without  an  action  immediately  accruing  to  the 
lord  to  demand  his  fee  in  demesne.     And  if  the  lord 

1 '  If  tlie  tenant  refuses  homage,  the  lord  may  distrain  his  fee 
■for  the  services  which  are  in  arrear.  But  he  should  make 
avowry  in  the  first  place  for  custom,  as  well  as  for  service  ;  as 
for  homage  and  fealty,  which  are  not  properly  services,  but 
customs  depending  upon  service.  For  liomage  is  appurtenant  to 
escuage,  and  is  a  security  for  whatever  belongs  to  knight's 
service  ;  and  fealty  is  appurtenant  to  rent,  and  is  a  security  for 
what  belongs  to  socage.  Wherefore  the  security  should  first  be 
demanded  between  lord  and  tenant,  as  between  others  who 
make  contracts.  And  the  lord  may  make  avowry  of  his  own 
seisin,  or  that  of  his  father  or  grandfather,  against  the  tenant  by 
whose  hand,  or  that  of  his  fatlier  or  grandfather,  he  was  seised  ; 
so,  in  more  distant  degrees,  provided  lie  can  assign  seisin  of  his 
ancestors  within  the  time  limited  in  writs  of  novel  disseisin. 
But  where  he  can  only  say  that  his  ancestors,  or  himself,  were 
seised  of  the  homage  or  fealty,  without  seisin  of  escuage  or  rent, 
lie  cannot  say  that  he  is  disseised  ;  for  rent  gives  seisin,  and  not 
fealty,  nor  homage.  But  the  lord  ought  not  to  distrain  but  for 
.arrears  of  rent  or  service,  of  which  he  can  allege  seisin  as  afore- 
said ;  which  seisin  of  rent  gives  him  continuance  of  possession, 
and  autliority  to  distrain  for  the  arrears,  and  for  the  fealty  by 
reason  of  the  service  which  is  in  arrear.  And  if  he  cannot 
.allege  seisin  as  aforesaid,  he  cannot  make  avowry  for  homage  or 
fealty,  although  he  have  received  tlieni  within  the  time  limited, 
nor  consequently  recover  by  assise  of  novel  disseisin  for  the  re- 
plevin of  him  who  should  be  his  tenant,  but  sliall  be  driven  to 
his  writ  of  customs  and  services.'  (Note  in  MS.  N.)  Compare 
^rac.  83  h,  84  ;  Fie.  211. 


364  BRITTOK  [II,  *174. 

has  been  seised  of  any  service  of  that  fee  by  the 
hand  of  any  actual  tenant,  although  he  Avas  not 
seised  by  means  of  him  who  replevied  the  cattle,  the 
lord  shall  nevertheless  recover  by  assise  of  novel  dis- 
seisin. 

IT.  When  homage  is  to  be  done,  it  should  be  done 
in  this  manner.  The  tenant  should  tender  his  homage 
to  his  lord  with  his  hands  joined  in  token  of  subjection 
and  reverence ;  and  the  lord,  in  token  of  warranty  ac- 
quittance and  defence,  ought  to  hold  the  tenant's 
hands  between  his  own.  And  where  homage  is  to  be 
done  to  us,  it  ought  to  be  done  with  these  *words : 
'I  become  your  man  for  the  fees  and  tenements 
which  I  hold  and  ought  to  hold  of  you,  and  will  bear 
you  faith  of  life  and  limb  of  body  and  chattels  and  of 
every  earthly  honour  against  all  who  can  live  or  die.' 
Then  the  lord,  whosoever  he  may  be,  whether  ourself 
or  another,  and  whether  male  or  female,  clerk  or  lay, 
old  or  young,  ought  to  kiss  his  tenant,  whether 
he  be  poor  or  rich,  ugly  or  handsome,  in  token  of 
perpetual  affiance,  and  obligation  of  strict  friendship. 
And  when  any  one  has  done  homage  to  us,  every 
other  lord  shall  be  foreclosed  of  the  allegiance  of 
seigniory. 

18.  Where  homage  is  to  be  done  to  any  other  liege 
lord  than  us,  let  it  be  done  in  these  words :  '  1  become 
your  man  for  the  fees  and  tenements  which  I  hold  and 
ought  to  hold  of  you,  and  particularly  for  such  a  tene- 
ment named  by  certain  quantit}^  and  certain  bounds, 
and  for  such  fees,  and  will  bear  you  faith  of  life  and 


II,  *174J.]  OF  HOMAGE.  365 

limb  above!  ^11  people,  saving  the  faith  which  I  owe 
to  the  king  and  his  heirs.'  The  lord  may  thus  know 
for  how  much  he  will  be  bound  to  warrant  his  tenant. 

19.  If  homage  is  to  be  performed  to  any  other  than 
to  a  liege  lord,  the  tenant  shall  say  thus :  *  I  become 
your  man  for  the  fees  and  tenements  which  I  hold 
and  ought  to  hold  of  you,  *and  in  particular  for  certain 
land  or  a  certain  tenement  in  such  a  vill,'  as  is  above- 
said,  '  and  I  will  bear  you  faith  above  all  people,  sav- 
in": the  faith  w^hich  I  owe  to  the  kinff  and  to  mv  other 
lords.' 

20.  When  any  one  is  to  do  homage  for  a  pension  ex 
camera^  as  a  servant  may  do  to  his  lord,  as  his  servant 
and  not  as  his  man,  the  words  shall  be  simply  these : 
'  I  become  your  man,  and  will  bear  you  faith  above  all 

1  In  Bracton  and  Fleta  the  word  is  contra,  and  a  misreading 
may  be  suspected.  Compare  the  form  in  s.  17.  But  outre  is 
found  in  all  the  MSS.  which  have  been  consulted,  both  here  and 
in  the  corresponding  places  of  ss.  19,  20. 

2  Compare  Bracton,  79  6  (§  6);  Fie.  20  (§  18,  19);  and  see  post, 
s.  31.  Bracton  says,  that  no  homage  was  done  for  a  rent  ex 
camerd,  where  no  land  was  bound  :  Fleta,  that  it  ouglit  not  to 
be  done,  and  if  it  be  done,  no  right  of  wardship  or  marriage 
arises.  Tlie  general  rule  is  laid  down  by  Glanville,  and  repeated 
by  Bracton  :  '  Pro  solo  dominio  fieri  non  debent  honuigia  alicui 
excepto  Principe.'  (Glan.  li.  9.  c.  2  ;  Brae.  79  h,  §  6).  But  it  is 
mentioned  by  Bracton  and  Fleta,  that  it  was  the  common 
practice  for  champions  to  do  homage  to  their  principals,  which 
could  only  be  ratione  dominii :  and  see  post,  s.  31.  This  prob- 
ably arose  from  the  form  in  which  the  wager  of  battle  was 
tendered  :  '  et  hoc  promptus  sum  probare  per  hunc  liberum  meum 
hominem.'     (Glanc.  li.  2.  c.  3.) 


366  BRITTON.  [II,  *174  b._ 

peojile  as  long  as  the  lioinage  shall  endure,  saving  the 
faith  which  I  owe  to  the  king  and  to  all  my  other 
lords.'  And  such  homages  ma}'^  be  released  by  waiver 
of  the  pensions  and  by  release  of  the  obligations.  And 
a  recent  change  in  the  law  has  had  this  eifect,  that 
homages  taken  by  feoffors  to  the  prejudice  of  the  chief 
lord  are  not  binding  or  of  any  force.^ 

21.  As  soon  as  homage  is  performed,  those  w4io  ai-o 
bound  to  do  any  services  to  the  lords  for  the  tene-. 
ments  shall  straightway  take  the  oath  of  fealty, — if  to 
us,  in  the  following  form,  laying  their  hands  upon  the 
Holy  Gospels :  '  Hear  this,  ye  good  people,  that  I,  such 
a  one  by  name,  faith  will  bear  to  our  lord  king  Ed- 
ward from  this  day  forward,  of  life  and  limb,  of  body 
and  chattels,  and  of  earthly  honour,  and  the  services 
which  belong  to  him  for  the  fees  and  tenements  which 
I  hold  of  him,  will  lawfully  perform  to  him  as  they 
become  due  to  the  best  of  my  power,  so  help  me  God 
and  the  Saints.' 

22.  If  fealty  is  to  be  done  to  any  other  liege  lord 
than  to  us,  then  let  it  be  done  in  these  words:  'Hear, 
you  this,  my  lord  John,  that  I,  Peter,  from  this  day,' 
from  this  day  forward,  will  bear  you  faith  of  life  and 
limb,  saving  my  faith  to  the  king  and  his  heirs,  and 
the  services,  which  belong   to  you  for  the  fees   and 

1  This  passage  is  important,  as  shewing  tlie  age  of  Britten. 
The  statute  referred  to  as  a  '  new  constitution  '  can  be  no  other 
than  the  statute  of  Westminster  tlie  third,  Quia  emptores  terra- 
rum,  passed  in  the  18th  year  of  Edward  I,  A,  D,  1290.     See  In- . 
troduction  by  the  Editor. 


II,  *175.]  OF  HOMAGE.  367 

tenements  which  I  hold  of  you,  lawfully  will  perform 
to  you  as  they  become  due  to  the  best  of  my  power, 
so  help  me  God  and  the  Saints.' 

*23.  If  any  one  refuses  to  do  fealty  to  his  lord,  the 
lord  may  distrain  his  tenant  until  he  does  it.  But  no 
parcener  or  his  issue  shall  swear  fealty  except  to  the 
eldest  parcener,  nor  to  him,  unless  the  lord  consents; 
but  it  shall  be  in  the  election  of  the  lord  to  take  his 
services  by  the  hands  of  one  or  of  all  the  parceners. 
For  otherwise  he  might  lose  the  Avardships  and  mar^ 
riages  of  the  other  parceners,  by  reason  of  the  words 
in  the  writ  of  ward,  where  the  plaintiff  says  that  the 
ancestor  of  the  infant,  in  respect  of  whom  he  demands 
wardship,  was  his  tenant,  and  performed  to  him  knight's 
service  ;  which  would  be  false,  if  the  service  was  donq 
to  any  other  than  to  him. 

24.  From  parcener  to  parcener  fealty  is  sworn  thus : 

*  Hear  you  this,  John,  that  I,  Peter,  will  bear  you 
faith  from  this  day  forward,  and  the  services  due  for 
my  portion  of  the  inheritance  which  was  Theobald's, 
our  common  ancestor's,  lawfully  will  perform  to  you 
as  they  become  due  to  the  best  of  my  power:  so  help 
me  God  and  the  Saints.'     And  to  the  other  lords  thus : 

*  Hear  you  this,  my  lord  John,  that  I,  Peter,  will  bear 
you  faith  from  this  day  forward,  and  the  services 
which  belong  to  you  for  the  fees  and  tenements,' — and 
so  on,  as  before,  fealty  of  life  and  limb  being  never 
sworn  except  to  us  and  to  liege  lords. 

25.  For  allegiance  is  of  so  high  a  nature,  that  if  two 
lords  are  at  difference,  the  tenant  must  perform  his 


368  BRITTON.  [II,  *1Y5  5. 

service  to  his  liege  lord  against  his  other  lord  in  his 
own  person,  and  must  perform  his  service  to  his  other 
lord  by  attorne}'.  And  homage  is  so  strong  a  bond 
between  lord  and  tenant,  that  none  may  without  judg- 
ment *or  the  mutual  consent  of  the  parties  recede  from 
the  homage,  so  long  as  the  tenant  shall  keep  in  his 
hands  the  tenements  or  fees,  for  which  he  is  bound  to 
perform  such  service  ;  neither  may  the  lord  do  any- 
thing which  touches  the  disherison  of  the  tenant  or 
other  great  wrong  to  his  damage  in  life  or  limb,  nor 
the  tenant  to  the  lord  after  performance  of  homage, 
without  by  the  very  act  breaking  the  league  between 
them  and  extinguishing  the  homage. 

26.  If  the  lord  be  convicted  by  judgment  of  this 
great  wrong,  it  shall  be  awarded  that  he  be  forejudged 
of  his  seigniory  for  ever,  and  be  otherwise  punished 
according  to  the  offence,  and  that  the  tenant  perform 
his  homage  to  his  superior  lord.  And  if  the  wrong  be 
convicted  in  the  person  of  the  tenant,  let  it  be  awarded 
that  he  lose  the  tenement  or  fee  for  which  he  did 
homage. 

27.  And  we  will  that  if  any  tenants  disavow  their 
lord,  or  disclaim  holding  of  him  in  a  court  bearing 
record,  the  lord,  on  account  of  the  homage  and  the 
oath  of  fealty  which  the  tenant  has  broken,  shall  have 
an  action  to  recover  the  tenement  of  such  tenant  of  his 
fee  in  demesne,  by  the  following  writ :  '  Command 
such  an  one  that  justly  and  without  delay  he  surrender 
to  such  an  one  so  much  land,  or  so  many  fees,  with  the 
appurtenances  in  such  a  place,  which   the  aforesaid 


II,  *175  c.  175  il]        OF  HOMAGE.  369 

*8uch  an  one  detains  from  him,  and  for  which  he  did 
homage  and  service  to  hira,  and  which  ought  to  be  his 
escheat,  inasmuch  as  the  aforesaid  such  an  one,  con- 
trary to  his  homage  and  the  oath  of  fealty  which  he 
liad  taken  to  him  for  the  same,  maliciously  to  his  dis- 
herison disclaimed  him  for  his  lord  and  the  holding  of 
anything  of  him,  and  that,  if  he  omits  doing  it,  he  be 
at  a  certain  day  and  place  before  our  Justices  to  show 
why  he  has  not  done  it.' 

28.  This  writ  need  not  be  pleaded  by  descent,  but 
may  be  determined  by  a  jury  and  inquest  as  to  the  fee 
and  the  quantity  thereof.  For  the  lord  cannot  properly 
count  by  descent  by  reason  of  the  ancestors  of  the  ten- 
ant, who  have  been  always  in  possession.  And  whether 
he  plead  by  descent  or  not,  we  will  not  have  the  action 
xletermined  by  battle  or  great  assise ;  but  we  allow,  if 
there  be  occasion,  that  the  tenant  may  put  himself  on  a 
jury  after  the  manner  of  a  great  assise  by  these  words, 
to  wit,  whether  he  has  most  right  to  hold  this  fee,  or 
the  tenement  demanded,  in  demesne,  or  he  who  de- 
mands it,  and  to  whom  this  same  tenant,  or  some  of 
his  ancestors  whose  heir  he  is,  did  homage  and  service 
for  the  same,  and  afterwards,  contrary  to  his  homage 
and  fealty,  maliciously  disclaimed  him.  And  let  judg- 
ment be  given  according  to  the  verdict. 

*29.  The  lord  has  likewise  the  same  action  against 
his  tenant,  where  the  tenant  has  performed  to  another 
that  homage  which  he  ought  to  have  done  to  him,  if  it 
be  found  that  there  was  fraud  or  malice  in  the  act ;  or 
if  he  has  done  homage  wrongfully  to  another  after  he 

24 


370  BEITTOK  [II,  *175  d. 

had  rightfully  performed  homage  to  him.  But  if  the 
tenant  has  done  it  by  the  distress  of  another,  or  by 
folly  and  not  by  malice,  in  such  case  we  will  that  the 
lords  and  the  tenant  be  made  to  ai)pear  in  our  court, 
and  it  shall  be  there  discussed  which  has  the  better 
right  to  the  homage.  And  he  who  is  in  the  right  shall 
recover,  and  he  who  is  in  the  wrong  shall  be  punished. 

30.  Whereas  battle  may  not  be  joined  between  lord 
and  tenant  during  the  homage,  we  will  that  if  any 
tenant  would  appeal  his  lord  of  felony  or  otherwise 
fight  with  him,  that  he  surrender  to  the  lord  the  fee  or 
tenement  which  he  holds  of  him,  so  that  the  homage 
may  thus  be  released.  For  homage  cannot  in  any 
other  way  be  released. 

31.  If  homage  be  done  without  the  possession  of 
any  fee  or  tenement,  that  homage  shall  be  of  no  force. 
Neither  let  homage  be  done  for  those  fees  or  tene- 
ments from  which  no  wardship  or  marriage  arises.^ 
jS^either  let  homage  for  grand  serjeanty,  although  it 

1  This  rule  was  not  of  universal  application,  since  homage  was 
sometimes  due  from  socage  tenements,  where  neither  wardship 
nor  marriage  could  be  claimed.  Brae.  77  h ;  Fie.  207  (§  17,  18). 
The  rights  of  wardship  and  marriage  were  inseparably  connected, 
as  appears  in  the  argument  used  in  the  following  note :  '  An 
infant  under  age  marries  a  wife,  to  whom  after  marriage  a 
knight's  fee  descends.  Qii.  Shall  the  lord  have  relief,  or  ward- 
ship until  the  husband's  age  ?  Some  say  wardship,  because  he 
must  take  his  homage,  and  he  ought  to  have  the  wardship  of  his 
tenant  holding  of  him  by  homage.  But  wardship  belongs  where 
marriage  belongs ;  and  the  marriage  of  the  infant,  even  if  lie 
were  unmarried,  could  not  belong  to  the  lord.  Therefore  the 
wardship  does  not  belong  to  liim.'     (Note  in  MS.  N.) 


II,  *176.]  OF  HOMAGE.  371 

be  performed,  be  of  any  force,  unless  the  serjeanty  be 
held  of  us  in  chief, — no  more  than  homage  done  for  a 
rent  ex  camerd,  or  by  a  champion  of  other  servant. 

*32.  For  homage  once  properly  performed  between 
tenant  and  lord  endures  as  long  as  they  both  live. 
And  although  homage  fail  by  the  death  of  the  lord, 
yet  it  remains  entire  in  the  person  of  the  tenant.  For 
although  the  tenant  does  homage  to  the  heir  of  his  lord, 
and  so  from  heir  to  heir,  yet  he  does  not  thereby  per- 
form several  homages,  but  renews  several  times  the 
same  homage.  Therefore  it  is  sufficient  for  a  tenant  to 
take  up  his  land  by  relief  once,  although  he  does 
homage  several  times.  But  if  several  homages  become 
due  on  the  part  of  the  tenant,  as  from  heir  to  heir,  we 
will  that  wardship  or  relief  follow  every  homage. 
One  tenant  nevertheless  may  perform  several  homages 
for  different  tenements  at  one  time,  or  at  several  times, 
to  the  same  lord  ;  but  when  homage  has  been  once 
performed  between  lord  and  tenant,  it  ought  not  to  be 
done  again  between  the  same  persons  for  the  same 
tenement. 

33.  Neither  will  we  that  the  lord  attorn  the  homage 
and  service  of  his  tenant  against  the  will  of  the 
tenant  to  whomsoever  he  pleases,  and  particularly 
to  the  mortal  enemy  of  the  tenant,  or  to  one  who 
has  nothing  whereby  he  can  warrant  him  if  need 
be.  But  in  other  cases  we  are  willing  it  should  be 
so  far  permitted,  that  if  a  tenant  will  not  of  his 
own  consent  attorn  to  hold  of  another  lord  according 
to  the  wish  of  the  lord,  the  feoffment  shall  be  made 


372  BRITTO^.  [II,  *17C  h. 

*by  fine  levied  in  our  court  between  the  lord  and  his 
feoffee,  of  the  service  of  the  tenant.  By  virtue  of 
which  fine,  we  will  command  the  sheriff  of  the  county 
by  our  writ  of  judgment  to  cause  the  tenant  to  come 
into  our  court  to  shew  what  tenements  and  wliat  fees 
he  holds  of  the  lord  and  by  what  services.  When  he 
appears,  if  he  says  that  he  holds  nothing,  and  does 
not  claim  to  hold  an  Nothing  of  him,  it  shall  be  awarded 
that  he  go  quit,  and  that  the  lord  be  in  mercy  ;  and  the 
lord  may  then  obtain  his  remedy  as  above  mentioned. 
If  the  tenant  say  that  he  holds  of  the  lord  certain 
tenements  or  fees,  and  by  certain  services,  let  it  be 
awarded  that  he  be  released  from  the  first  lord  and  his 
homage  transferred  to  the  third  party,  to  whom  bis 
lord  has  attorned  him. 

34.  If  the  tenant  say  that  he  has  done  homage  for 
the  tenement,  which  homage  is  not  yet  extinct,  and 
demand  judgment  whether  he  ought  to  perform  two 
homages  to  two  persons  for  one  tenement  in  the  life- 
time of  his  first  lord,  from  whom  he  does  not  wish  to 
separate  ;  in  such  case  we  will  not  have  it  awarded 
that  any  do  homage  against  his  will  to  another  than 
him  to  whom  he  first  did  it  in  the  lifetime  of  his  first 
lord.  But  if  he  can  give  no  reason  why  he  ought  not 
to  do  fealty  to  him  to  whom  he  is  attorned,  let  it  be 
awarded  that  he  take  the  oath  of  fealty  to  him  ;  and  if 
he  will  not  do  it  of  his  own  accord,  let  it  be  awarded 
that  the  purchaser  distrain  the  tenements  or  the  fees 
whereout  the  services  should  issue,  until  he  shall  do 
fealty  to  him.     For  whosoever  grants  service,  grants 


II,  *m.]  OF  HOMAGE.  373 

*a  right  to  distrain.  And  when  the  feoffor  dies,  we 
will  that  the  homage  be  immediately  extinct  in  the 
persons  of  the  heirs  of  the  feoffor,  and  take  place 
anew  in  that  of  the  purchaser  according  to  the  force 
of  the  fine  levied  in  our  court. 

35.  And  if  such  purchaser  distrain  the  tenant 
for  homage  or  for  other  service,  and  the  tenant  cause 
his  distress  to  be  replevied,  and  in  his  pleading  says 
that  he  wrongfully  took  his  cattle,  inasmuch  he  does 
not  claim  to  hold  anything  of  him,  yet  notwithstanding 
such  replication,  w^e  will  not  that  he  cease  to  distrain ; 
for  in  this  case  distress  and  disclaimer  may  well  stand 
together. 

36.  Nevertheless  there  are  cases,  in  which  such 
tenants  may  avail  themselves  of  the  exception,  that 
they  ought  not  to  be  attorned  against  their  consent,  as 
where  a  lord,  for  the  purpose  of  burdening  his  tenant 
and  discharging  himself,  wishes  to  attorn  his  tenant  to 
one  who  has  nothing  whereby  he  can  warrant  him,  or 
satisfy  him  for  the  value,  if  need  be.  In  this  case  the 
exception  shall  be  allowable  to  every  tenant,  so  that  it 
shall  not  be  in  the  power  of  any  lord,  on  account  of  the 
smallness  of  the  service,  to  waive  his  fee,  in  order  to 
be  discharged  from  the  risk  of  warranty. 


374  BEITTOK.  [H,  "l^'^  *• 


*CHAPTER  V. 

Of  Reliefs. 

1.  If  any  tenant  is  of  full  age  at  the  time  of  the 
death  of  his  ancestor  whose  heir  he  is,  let  him  immedi- 
asely  go  and  find  his  lord,  and  do  him  homage  and 
relieve  his  inheritance  which  lies  dormant  and  unsup- 
ported upon  the  death  of  his  ancestor.  Which  relief  is 
reduced  to  a  certainty  among  the  articles  of  the  Great 
Charter. 

2.  But  if  an3^one  has  been  so  long  in  ward  of  his 
lord  after  the  death  of  his  ancestor,  that  the  lord  has 
taken  any  sort  of  profits  of  his  inheritance  in  however 
small  a  quantity  on  account  of  wardship,  the  heir  shall 
be  quit  of  relief.  And  although  homage  be  often 
renewed  on  the  death  of  several  lords,  yet  no  tenant 
shall  be  obliged  to  relieve  his  land  more  than  once  in 
his  lifetime,  and  his  heir  another  time,  and  so  from 
heir  to  heir,  as  above  is  mentioned  in  treating  of 
homage. 

3.  And  although  any  one  alien  his  tenements,  yet 
the  lord  of  the  fee  may  not  demand  of  the  feoffee  any 
relief.  For  we  will  that  all  purchasers  shall  be  quit 
of  relief  for  their  lives  in  respect  of  the  tenements 
purchased.  So  likewise,  all  those  whose  lords  are 
changed.     And  those  who  hold  for  term  of  life  only. 


IT,  *17S.]  OF  BELIEFS.  375 

And  those,  who  marry  women,  Avho  were  some  time 
in  ward  of  their  lords,  that  is  to  say,  for  the  inherit- 
ances of  their  wives.  And  as  we  will  not  that  any 
under  the  age  of  twenty-one  years  shall  give  relief,  so 
''^neither  will  we  that  relief  be  paid  to  any  under  that 
age,  nor  before  the  lord  is  seised  of  his  inheritance, 
nor  before  the  lord  has  restored  to  the  tenant  the  char- 
ters of  his  inheritances,  if  in  his  hands. 

4.  Although  the  law  does  not  require  relief  in  the 
case  of  any  tenement  other  than  a  fee  of  chivalry  or 
grand  serjeanty,  yet  for  tenements  which  are  not  of 
such  fees,  where  the  service  is  fixed,  we  will  that 
every  tenant  give  to  his  lord  in  acknowledgment  of 
his  seigniory  the  amount  of  one  year's  rent,  so  that 
the  lord  in  that  year  shall  have  as  much  as  double  his 
tenant's  rent.  And  in  such  acknowledgments  the 
same  rule  shall  be  observed  as  has  been  mentioned 
concerning  reliefs,  that  none  make  the  acknowledg- 
ment before  he  is  of  age  to  take  the  oath  of  fealty, — 
nor  more  than  once, — nor  until  his  lord  be  of  full  age 
and  in  seisin  of  his  inheritance.  And  for  tenements 
held  in  fee-farm  or  in  free  alms,  let  nothing  be  given, 
except  what  is  specially  expressed  in  the  deed. 

5.  With  respect  to  heriots,  we  will  that  no  tenement, 
nor  any  heir,  be  bound.  For  the  gift  of  an  heriot  is  a 
payment  made,  on  account  of  the  death  of  the  tenant 
of  some  lord,  of  the  best  beast  found  in  tbe  possession  of 
the  deceased,  or  of  one  not  the  best,  according  to  the 
appointment  of  the  djang  person,  to  the  use  of  the  lord  ; 
whch  payment  does  not  at  all  concern  the  heir  or  his 


376  BRITTOK  [II,  *1T8  K 

inheritance.  Neither  is  it  to  be  compared  with  relief  ; 
for  it  arises  more  out  of  favour  than  of  right,  and  is  more 
paid  by  villains  than  by  freemen. 


*CHAPTEK  VI. 

Of  Mortdancester. 

1,  It  is  always  the  duty  of  heirs,  when  they  come  to- 
their  inheritances  by  succession,  to  permit  their  lords 
to  make  a  simple  seisin,^  without  doing  any  sort  of 
damage,  whereby  they  may  be  recognised  as  lords. 
And  if  such  heirs  are  under  age,  and  ought  to  hold  by 
knights'  service,  let  the  lords  first  take  their  homages,, 
and  afterwards  have  the  wardship  of  their  fees.  If 
the  lords  find  their  fees  vacant,  they  may  seize  them 
simply  in  right  of  seigniory,  and  fully  in  right  of  the 
lawful  heir,  whosoever  he  may  be.  And  this  last 
clause  shall  be  a  justification  for  all  such  lords  delaying 

^  This  is  the  rule  laid  down  by  Bracton  (f.  353  h),  and  con- 
firmed by  the  Statute  of  Marlborough,  c.  16.  Lord  Coke,  in 
commenting  upon  this  statute,  interprets  '  simple  seisin '  to  mean 
relief.  But  althougli  in  all  probability  it  soon  became  the  prac- 
tice to  be  contented  with  this  recognition  of  seigniory,  the  words 
of  the  statute,  as  well  as  those  of  Bracton,  appear  rather  to  con- 
template a  formal  possession  of  the  tenement,  it  being  expressly 
provided  that  the  lord  was  not  to  take  or  remove  anything  froni 
the  land,  or  to  eject  the  heir.  It  will  be  seen  that  in  the  next 
sentence  of  the  text,  the  simple,  or  formal,  seisin  of  the  lord,  is 
contrasted  with  the  full,  or  beneficial,  possession  of  the  heir. 


II,  *179.]        OF  MORTDANCESTER.  377 

to  take  the  homage  or  to  yield  up  the  inheritance  to 
any  other  than  the  lawful  heir. 

2.  If  any  lord  through  malice  or  negligence  shall 
take  the  homage  of  one  who  is  not  the  right  heir, 
where  the  lord  well  knows  that  there  is  a  nearer  heir, 
or  has  reason  to  suspect  it  by  another  offering  himself 
as  right  heir,  or  by  common  report  of  the  neighbour- 
hood, and  after  receiving  such  homage,  shall  deliver  to 
him  seisin  of  the  inheritance  in  demand,  and  the  right 
heir  shall  then  bring  an  assise  of  Mortdancester  against 
the  tenant,  *and  the  tenant  shall  vouch  the  lord  to 
warranty  by  reason  of  the  homage  which  the  lord  re- 
ceived of  him  ;  we  will  that  in  such  case  the  lord  shall 
be  bound  to  warranty  and  to  exchange,  although  he 
alleges  by  exception  that  he  took  his  homage  saving 
every  person's  right,  since  he  took  the  first  step  to 
disinherit  the  right  heir.  But  if  no  other  had  claimed 
the  inheritance,  and  the  lord  had  had  no  suspicion  that 
another  was  heir,  it  would  have  been  reasonable  that 
such  a  condition  in  the  taking  of  homage  should  have 
been  allowable ;  and  in  such  a  case  w^e  will  that  such 
conditional  receptions  of  homages  shall  be  allowed,  but 
in  no  other  cases. 

3.  If  any  lord  be  in  seisin  of  his  fee,  and  be  doubtful 
of  several  persons  who  demand  the  inheritance  and  offer 
themselves  as  heirs,  whose  homage  he  ought  to  take, 
such  lord  may  keep  himself  in  the  inheritance,  without 
claiming  anything  but  the  seigniory,  until  he  be  certain- 
ly informed  which  is  the  nearest  heir  to  the  deceased 
ancestor. 


378  BRITTON.  ll[,Ti\)k 

4.  If  it  happens  that  the  elder  brother  and  rijt|;ht  heir 
is  out  of  the  country  at  the  time  of  the  death  of  his 
ancestor,  and  the  younger  brother  finds  the  inheritance 
vacant,  and  thrusts  himself  in,  claiming  the  inheritance 
as  rigfht  heir  ;  in  such  case  the  lord  mav  take  the 
homage  of  the  younger  brother,  under  condition  that 
seisin  of  the  inheritance  be  delivered  to  the  elder  brother 
or  his  *issue  whenever  he  shall  appear  to  demand  his 
inheritance,  whoever  be  then  tenant.  For  if  the  lord 
eject  the  younger  brother  after  he  has  been  seised,  he 
shall  recover  by  assise  of  Novel  Disseisin,  to  hold 
nevertheless  according  to  the  condition  aforesaid. 
And  if  the  lord  is  in  seisin,  and  keeps  out  the  j'^ounger 
brother,  wlio  proceeds  against  the  lord  by  assise  of 
Mortdancester,  and  it  is  found  by  the  assise  that  he 
has  an  elder  brother,  seisin  shall  be  awarded  to  him 
under  the  before-mentioned  condition.  But  if  a  bastard 
keeps  himself  in  seisin,  where  no  heir  offers  himself  for 
the  inheritance,  in  such  case  it  is  lawful  for  the  lord  to 
eject  such  bastard,  except  where  his  long  possession 
through  the  negligence  or  weakness  of  the  lord  consti- 
tutes a  valid  title  to  the  freehold. 

5.  Therefore  it  behoves  every  lord  to  seize  his  fee 
without  delay  upon  the  death  of  his  tenant,  if  he  finds 
it  vacant.  And  if  the  heir  is  of  full  age,  and  in  seisin, 
and  will  not  suffer  the  lord  to  have  seisin  nor  acknowl- 
edge him  as  lord  ;  in  such  case  the  lord  may  lawfully 
keep  Iiimself  in  seisin,  together  with  the  heir  or  the 
person  who  pretends  to  be  heir,  but  he  must  not  eject 
him  ;  and  if  he  can  do  nothing  more,  he  may  disturb 


II,  *180.]  OF  MORTDAKCESTER.  379 

such  heir  in  the  enjoyment  of  his  seisin  until  ''^he  ac- 
knowledges him  as  his  lord.  When  he  shall  acknowledge 
him,  let  the  lord  forthwith  take  his  homage  and  security 
for  his  relief,  and  his  oath  of  fealty,  and  that  he  will 
lawfully  perform  to  him  the  services  which  belong  to 
his  inheritance  ;  and  let  his  inheritance  and  the  free 
management  thereof  be  then  restored  to  him  without 
dela}'. 

6.  If  the  lord  obtains  the  first  seisin,  the  heir  being 
of  full  age,  and  the  lord  will  not  acknowledge  him  as 
heir,  his  first  remedy  is  by  assise  of  Mortdancester. 
And  when  any  person  wishes  to  proceed  before  our 
Justices  for  an  inheritance  thus  detained  from  him, 
let  him  first  find  security  by  known  pledges  to  prosecute 
his  plaint,  if  he  has  such  pledges  ready  ;  and  if  he  has 
not,  we  will  command  the  sheriff  of  the  county  to  take 
security  ;  and  if  the  plaintiff  be  so  poor  that  he  cannot 
find  security,  the  pledging  of  his  own  faith  shall  be 
sufficient ;  and  such  writs  as  his  suit  requires  shall  be 
forthwith  granted  to  him.  And  if  the  plaintiff  is 
under  age,  he  need  not  find  security  to  prosecute  his 
plaint,  nor  need  any  term  be  mentioned  in  his  writ.^ 

7.  As  this  assise  is  limited  between  certain  persons, 
so  likewise  it  is  confined  within  certain  degrees ;  for 
assise  is  to  be  granted  *of  the  death  of  the  father, 
mother,  uncle,  aunt,  brother,  and  sister,  and  not  ascend- 


*  That  is,  no  term  of  limitation  need  be  named,  since,  if  his 
immediate  ancestor  died  seised,  the  minority  of  the  heir  is  itself 
a  proof  of  the  recent  accruer  of  his  title.    See  Bracton,  f.  254. 


380  BRITTON.  [II,  *180  I. 

ing  higher,  as  to  the  grandfather,  nor  descending- 
lower,  as  to  tlie  nephew  ;  so  that  neither  of  the  death 
of  the  grandfather  nor  of  the  death  of  the  nephew 
alone,*  nor  in  any  higher  or  lower  degree  is  this  assise 
ever  allowed.  And  the  more  clearly  to  see  of  what 
ancestors  this  assise  lies,  let  four  degrees  be  set  down, 
of  which  father  and  mother  make  one  degree,  uncle 
and  aunt  on  the  father's  side  the  second  degree  col- 
lateral, uncle  and  aunt  on  the  mother's  side  the  third 
degree  collateral,  and  the  child  of  the  father  or  of  the 
mother,  the  son's  own  brother  or  sister,  make  the 
fourth  degree  in  the  right  line  descending  from  the 
father  and  the  mother.  And  this  fourth  degree  is 
divisible  into  three,  as  appears  by  the  above  figure. 

8.  And  if  the  son  is  to  institute  this  assise  against 
any  stranger  in  blood,  being  tenant,  then  this  assise 
may  well  be  had  of  the  death  of  his  father,  or  of  the 
death  of  his  mother,  and  not  in  the  reverse  case.^ 
For  this  assise  always  supposes  priority  in  the  an- 
cestor, or  at  least  equality ;  and  requires  to  be 
brought  by  the  lower  of  the  higher,  ascending  and 
not  descending,  and  also  from  equal  to  equal,  as  of 
the  death  of  the  brother  by  the  brother  or  by  the  sister, 
and  of  the  death  of  the  sister  on  behalf  the  brother  or 
sister.     And  if  any  one  in  a  more  remote   degree  is 

1  This  word  '  alone '  appears  to  liave  reference  to  the  exception 
afterwards  stated  concerning  the  case  of  a  joint  assise.     See  s.  10. 

'■^  This  appears  to  imply  the  possibility  of  a  father  claiming  as 
heir  to  his  son.  though  not  by  this  assise.  See  post,  1.  vi.  c.  4, 
s.  4,  and  note  there. 


II,  *181  5.]        OF  MORTDANCESTER.  381 

aided  by  this  assise,  it  will  be  rather  in  consequence 
of  some  other  person  who  makes  the  assise,  tlian  for 
himself,  as  shall  be  afterwards  mentioned.  There- 
fore we  will  that  if  any  separate  assise  be  brought  to 
trial  concerning  the  death  of  any  person  not  within 
these  two  degrees,  the  assise  shall  fall,  unless  some 
person  is  joined  who  may  make  good  the  assise. 

9.  Is^either  by  this  assise  nor  by  any  other  pos- 
sessory writ  shall  any  proximity  of  blood  be  tried  ; 
that  is  to  say,  between  demandant  and  tenant  claim- 
ing by  the  same  descent ;  but  between  all  strangers 
in  blood  the  assise  shall  lie  so  far  as  it  may  extend. 
And  such  kindred  as  cannot  be  aided,  by  this  assise 
sliall  have  their  remedy  by  our  w^rits  of  Cosinage, 
of  Ael,  Aele,  Besael,  and  Besaele ;  which  writs  do 
not  determine  anything  of  the  mere  right,  but  spring 
out  of  this  assise,  and  determine  by  means  of  juries 
the  right  of  possession.  The  assise  however  takes 
place  among  privies  of  blood  claiming  by  different  de- 
scents, as  between  two  brothers  by  different  fathers 
or  by  different  mothers.  *For  the  brother  begotten 
by  any  other  father  is  an  entire  stranger,  so  far  as 
concerns  the  demanding  of  anything  upon  the  death 
of  the  father  or  ancestor  of  the  other  brother,  and 
so  of  two  brothers  born  of  different  mothers.  But 
this  assise  does  not  lie  between  a  legitimate  brother 
and  a  bastard  seised  of  the  other's  inheritance,  be- 
cause the  proof  of  the  proximity  of  blood  cannot  be 
tried  by  any  possessory  plea. 

10.  Sometimes    two  or  three  persons   in  different 


382  BRITTON.  [II,  *182, 

degrees  are  joined  together,  and  obtain  their  remedy 
by  assise  of  Mortdancester,  where  the  plea  partakes 
of  the  nature  of  an  assise  of  Mortdancester  and  of 
Cosinage  ;  as  in  the  case  of  an  inheritance  which  de- 
scended from  one  stock  to  two  persons,  constituting 
a  single  heir,  by  different  lines,  as  to  a  daughter  on 
the  one  side,  in  whose  person  the  assise  of  Mort- 
dancester takes  place,  and  to  a  grandson  by  another 
daughter  on  the  other  side,  in  whose  person  the  writ 
of  Ael  lies,  being  in  a  degree  to  which  assise  of  Mort- 
dancester does  not  extend.  In  the  which  case  we 
will  that  the  recognitors  of  the  assise  come  and  make 
recognisance  upon  their  oath,  whether  the  father  (or 
mother)  of  the  daughter,  and  the  grandfather  (or 
grandmother)  of  the  grandson  was  seized  in  his  de- 
mesne, &c.  And  what  is  said  -of  the  seisin  of  the 
grandfather  or  grandmother  as  regards  the  grandson 
may  also  be  said  and  reputed  for  law  concerning  their 
brothers  and  sisters,  uncles  and  aunts  of  the  daugliter, 
and  cousins^  to  the  grandson,  since  they  are  in  the 
same  degree  with  the  grandfather  and  grandmother; 
but  higher  the  assise  of  Mortdancester  does  not  ascend. 
*11.  And  because  there  is  more  speedy  remedy  in 
the  assise  of  Mortdancester  than  in  the  plea  of  Cos- 
inage de  Ael,  we  will  that  such  plaintiffs  have  relief 
by  assise  of  Mortdancester,  whether  the  parties  wish 
to  join  in  one  plaint  or  not,  so  that  the  daughter 
shall  not  be  able  to  proceed  by  an  assise  without 
naming  in  the  writ  the  grandson  or  his  issue  in  what- 
1  That  is,  as  I  understand,  great- uncles  and  great-aunts. 


II,  *182  h.]       OF  MORTDANCESTER.  3«a 

soever  degree  found  ;  nor  can  the  grandson  or  his  issue 
iproceed  by  writ  of  Cosinage  in  the  lifetime  of  the 
daughter  who  is  his  co-parcener  and  nearer  by  one  de- 
gree or  more.  For  the  nearest  person  makes  the  assise, 
and  draws  to  itself  the  person  in  the  more  remote 
degree. 

12.  There  are  other  writs  somewhat  resembling  this 
last  double  action,  as  of  the  death  of  the  uncle  or 
aunt  in  a  partible  inheritance^;  wherein  every  case 
the  nephew  ought  to  be  joined  in  the  same  action 
with  the  uncle  and  the  aunt  in  an  assise  of  Mort- 
dancester,  and  this  action  is  not  mixed  with  Cosinage ; 
and  the  recognitors  of  the  assise  ought  to  come  antl 
make  recognisance  upon  their  oath  whether  the  uncle 
or  the  aunt  on  the  father's  or  mother's  side  of 
the  nephew  demandant  on  the  one  part,  and  the 
brother  or  the  sister  of  the  uncle  or  the  aunt  on  the 
side  of  the  other  demandant,  whose  heirs  these  two 
demandants  are,  was  seized  in  his  or  her  demesne. 

13.  Where  the  inheritance  is  not  partible,  and  the 
uncle  brings  an  assise  of  Mortdancester  of  the  death 
of  his  father  or  mother,  uncle  or  aunt,  *and  the 
nephew  by  the  brother  brings  a  writ  of  Cosinage 
for  the  same  tenement  against  the  same  strangers, 
or  if  both  have  instituted  an  assise  of  Mortdancester 
against  the  same  stranger,  that  is  to  say,  the  nephew, 

1  It  will  be  remembered  that  in  early  times,  by  common 
custom,  tenements  in  socage  were  partible  or  divisible  among 
the  sons.  See  Glan.  1.  7,  c.  3  ;  1.  13,  s.  11 ;  Brae.  76  ;  Fie.  30& 
(§2). 


384  BHITTOK  [II,  *183. 

upon  the  death  of  his  uncle  or  aunt,  and  the  uncle 
of  the  same  nephew,  upon  the  death  of  his  brother 
or  sister ;  in  both  these  cases  the  nephew  is  to  be 
received  to  the  inheritance  before  the  uncle.  And 
if  one  of  them  either  by  assise  or  by  Cosinage  de- 
mands against  the  other  an  inheritance  descending- 
from  the  same  stock  ;  in  such  case  it  shall  be  ad- 
judged in  favour  of  whichever  party  is  in  possession, 
if  the  tenant  claims  by  the  same  descent  as  the  de- 
mandant does,  although  the  demandant  may  have 
a  better  right ;  and  let  him  afterwards  proceed  by 
writ  of  right,  by  which  writ  alone  the  proximity  of 
blood  and  the  right  can  be  tried. 

14.  If  any  stranger,  as,  for  example,  the  chief  lord 
or  other,  deforce  parceners  of  their  inheritance,  and 
some  of  them  are  diligent  in  demanding  their  inherit- 
ances and  others  negligent,  it  behoves  the  diligent, 
whether  one  or  more,  to  make  his  plaint  and  purchase 
his  writ  in  the  names  of  all  the  parceners  who  have 
not  their  portions,  by  reason  of  the  unity  of  the  right 
Avhich  remains  united  until  division  ;  after  which  any 
party  who  will  may  sue;  and  those  who  choose  to 
sue  shall  have  remedy  by  this  assise  of  the  death  of 
their  common  ancestor. 

*15.  "Whereas  this  assise  does  not  lie  between  privies 
of  blood,  and  in  particular  between  parceners  who  take 
as  one  heir,  we  propose,  before  more  is  said  of  the 
assise,  in  part  to  explain  by  what  actions,  and  by  what 
writs,  and  how  one  parcener  may  compel  his  other 
parceners  to  make  severance  of  their  inheritance  which 


II,  *183  I.]       OF  MOKTDANCESTER.  385 

they  hold  in  common,  so  that  each  may  know  his 
several,  and  that  each  may  have  his  reasonable  portion 
according  to  his  due  ;  and  if  any  one  be  deforced  of 
the  whole  by  his  parceners,  how  and  by  what  writ 
he  may  have  redress,  and  by  what  writ  he  may 
recover  part  if  he  be  disseised  of  part. 


CHAPTER  VII. 

Of  a  Mixed  Action. 

1.  There  is  a  kind  of  action  which  may  be  tried  in 
our  court,  called  a  mixed  action,  inasmuch  it  con- 
cerns the  person  against  whom  the  demand  is  made 
as  well  as  the  thing  demanded ;  and  therefore  is 
pleadable  by  personal  distresses  and  by  real  also,  as  by 
the  great  and  little  Cape.  Of  such  kind  is  an  action 
to  sever  a  thing  held  in  common,  wherein  each  party 
is  plaintiff  and  defendant,  as  where  strangers  without 
affinity  or  kindred  have  something  to  be  divided  be- 
tween them  which  they  hold  in  *common,  as  in  the  case 
of  neighbors  who  proceed  by  action  to  divide  some  tene- 
ment between  them,  so  that  each  may  have  severalty. 
Another  kind  of  mixed  action  is  that  called  in  the  Im- 
perial law  actio  famiUcB  Jierciscundce^  which  takes  place 

• 
1  '  Nota    hie    de  actione    que  dicitui*  Familia  Herciscunde.' 
{Note  in  MS.  N.)     The  word  lierciscundce,  (from  herciscere,  'to 

divide/)  which  is  scarcely  found  except  in  this  connection,  ap- 
25 


3S6  BIUTTON.  [II,  *183  h. 

between  those  who   have   a  common   inheritance   ta 
divide. 

2.  Nevertheless  two  actions  ^  do  not  arise  as  soon  as 
the  inheritance  or  other  thing  is  held  between  such 
parceners  in  common,  but  from  the  time  that  any  of 
them  begins  to  compel  the  others  to  a  division.  And 
this  action  obtains  among  several  parceners  and  co- 
heirs, as  where  several  brothers  ^  or  sisters  or  their  issue 
hold  an  inheritance  in  common  as  one  heir,  and  wish 
to  proceed  for  a  division,  so  that  every  one  ma}"  have 
his  portion  in  severalty.  It  also  lies  between  parcen- 
ers who  are  as  one  heir  in  respect  of  a  common  tene- 
ment which  they  are  desirous  of  having  divided,  and 
which  is  divisible  by  reason  of  the  tenement.  These 
actions  are  called  mixed,  because  either  party  is  plain- 
tiff and  either  defendant,  that  party  being  plaintiff  who 
first  complains. 

pears  to  have  been  taken  for  a  proper  name  by  our  author  or  his 
transcribers. 

1  Tlie  word  cestes,  '  these,'  appears  to  be  wanting  at  the  be- 
ginning of  this  sentence.  In  Bracton  it  is,  '  Sed  hae  duse  ac- 
tiones  ; '  but  in  Fleta  we  find,  *  Sed  duae  actiones.'  Accepting 
the  omission,  we  should  perhaps  translate  the  words,  '  double  or 
mixed  action.'  As  to  tlie  relation  of  this  work  to  Fleta,  see  the 
Introduction  by  the  Editor. 

2  The  words  '  brothers  or  '  seem  to  have  crept  into  the  text  by 
mistake.  The  two  cases  intended  in  this  and  the  following 
clause  are,  §rst,  where  a  tenement  is  divisible  by  the  common 
law  among  sisters  ;  secondly,  where  a  tenement  is  divisible  bj' 
custom  (par  la  resoun  del  tenement)  among  brothers.  See  the 
corresponding  passage  in  Bracton  and  Fleta. 


II,  *184.]  OF  A  MIXED  ACTION.  38T 

3.  In  these  two  cases,  if  any  parcener  demand 
against  another  his  reasonable  share,  and  the  tenant 
or  tenants  make  default,  there  shall  be  taken  into  our 
hand,  out  of  the  entire  common  inheritance,  the  por- 
tion which  belongs  to  the  plaintiff ;  *and  thus  the  dis- 
tress will  be  real  and  not  personal.  And  such  shall  be 
the  proceeding  in  a  plea  derationabili  paHe,  which  takes 
place  where  one  is  denied  to  be  a  parcener  and  is 
deforced  of  his  share.  But  where  all  are  acknowl- 
edged to  be  heirs  and  parceners,  there  should  be  no 
plea  de  rationabili  parte^  although  an  action  may  arise 
on  account  of  one  of  them  having  less  for  his  share 
than  he  ought  to  have. 

4.  It  is  proper  therefore  in  such  case,  as  soon  as 
the  parceners  have  performed  their  homage  to  their 
chief  lords  and  are  desirous  to  have  their  inheritance 
divided  between  them,  so  that  each  may  know  his 
several  portion,  that  an  extent  should  first  be  taken, 
and  that  according  to  the  extent  partition  should  be 
made  between  them.  And  if  such  parceners  would 
have  our  aid  in  making  the  division,  whereby  an  oath 
is  taken  to  do  it  lawfully,  then  at  the  request  of  any 
plaintiff  parcener  we  Avill  command  the  sheriff  that  he 
do  by  knights  and  other  good  men  of  the  count}^  in 
the  presence  of  the  parceners,  if  they  will  be  there, 
cause  an  extent  to  be  made  of  all  the  lands  and  tene- 
ments which  were  of  such  an  one  (the  common  ances- 
tor of  the  parceners),  in  such  a  county  ;  and  accord- 
ing to  this  extent  livery  shall  be  made  of  his  share  to 
every  parcener. 


388  BIIITTON.  [II,  *184  h. 

5.  The  extent  shall  be  made  in  this  manner.^  First 
let  an  inquest  be  taken  upon  the  oath  of  the  jurors, 
how  much  the  buildings  in  the  capital  manor,  and 
the  moats,  vivaries,  hays,  pools  and  other  ^fisheries  are 
worth  by  the  year,  clear  of  outgoings.  Then  let  the 
true  value  be  inquired  of  the  gardens,  curtilages, 
dovecots,  and  the  other  issues  within  the  court ;  then 
how  many  fields  and  closes  of  arable  land  there  are 
in  the  demesne,  and  how  many  acres  each  close  con- 
tains, and  how  mnch  every  acre  is  worth  b\'  the  3'^ear ; 
and  how  many  acres  of  meadow  there  are  in  demesne, 
and  how  much  every  acre  is  worth  by  the  year; 
and  how  many  acres  there  are  of  every  kind  of 
pasture,  and  sufficient  for  how  many  beasts,  and 
what  kind  of  beasts,  and  how  much  the  pasturage 
of  one  beast  is  worth  by  the  year  according  to  the 
kind  of  beast.  Under  this  article  is  comprised  as 
well  common  of  pasture  for  sheep,  hogs,  and  goats, 
as  pasture  several  for  oxen,  cows,  and  Ijeifers,  and 
for  studs  of  mares  and  colts  in  woods  or  parks,  or 
in  enclosures  or  elsewhere  in  their  severals.  After- 
wards let  inquiry  be  made  concerning  the  said  woods, 
how  much  each  acre  is  worth  by  the  year,  to  keep  as 
wood,  or  to  assart  and  improve  ;  and  how  many  acres 
the  parks  and  the  other  demesne  woods  contain  ;  then, 
of  the  value  of  the  reasonable  estovers  from  land  be- 
longing to  others,  how  much  they  are  worth  by  the 

'  This  section  much  resembles  the  ancient  summary,  called 
Extenta  manerii,  printed  among  the  Statuta  temporis  incerti,  in 
the  Statutes  at  large. 


II,  *185.]  OF  A  MIXED  ACTION.  389 

year,  as  wood  for  building,  fencing,  and  burning,  and 
rights  of  fishing  in  another's  river,  and  of  digging 
turfs  in  another's  soil  or  in  some  common  soil  and 
other  necessaries.  Afterwards  let  inquiry  be  made  of 
*honey,  and  of  pannage,  and  of  mast  of  acorns,  nuts, 
and  other  kinds  of  fruits,  and  of  all  manner  of  profits 
arising  from  forests,  woods,  moors,  heaths,  turbaries, 
wastes,  and  every  other  kind  of  commodity  issuing 
from  commons,  how  much  they  are  worth  by  the  year. 
Then,  of  rents  issuing  out  of  the  fees  belonging  to  the 
manor,  and  of  rents  due  to  the  manor  for  common 
granted  in  the  fees  of  the  manor,  and  of  all  other 
sorts  of  rents.  Next,  of  mills,  vivaries  out  of  the 
manor,  and  several  fisheries,  how  much  they  are  worth 
by  the  year.  Then,  of  pleas  and  perquisites  of  courts 
and  of  franchises,  markets,  warrens,  rabbit-warrens, 
traverses,  tolls,  customs,  and  views  of  frank  pledge,  and 
of  the  yearly  issues  of  every  kind  of  franchise :  and 
then,  of  the  advowsons  of  churches,  how  much  each 
church  is  worth  by  the  year ;  and  of  suits  of  free- 
holders, how  much  each  suit  is  worth  upon  every  de- 
fault. It  should  also  be  inquired  concerning  aids, 
presents,  heriots,  and  every  kind  of  annual  compliment. 
And  afterwards,  of  villains,  and  of  the  villenages  let 
every  house  be  separately  extended,  and  then  their 
closes,  meadows,  and  pasture^ ;  also  their  rents,  serv- 
ices, talliages,  and  customs. 

6.  The  whole  amount  of  the  extent  shall  be  entered 
on  a  roll,  together  with  a  verdict.  And  for  every 
marc  in  the  value  of  a  church,  one  shilling  shall  be  put 


390  BPJTTOX.  [II,  *185  h.,  ISG. 

in  the  extent ;  *so  that  if  the  church  be  worth  one  hun- 
dred marcs  a  year,  the  yearly  value  shall  be  extended 
at  a  hundred  shillings  ;  and  according  to  this  valua- 
tion those  who  do  not  keep  the  advowson  of  the  church 
shall  be  compensated  in  land.  For  an  advowson  is  not 
ilivisible  ;  but  if  it  were  to  be  sold,  the  reasonable 
price  would  be  according  to  the  annual  value  of  the 
church.  This  extent  being  so  made,  shall  be  enrolled 
and  sealed  under  the  seals  of  the  sworn  extenders. 

7.  If  the  parceners  are  present,  they  shall  be  asked 
whether  any  of  them  can  show  cause  why  any  person 
who  calls  himself  a  parcener  ought  not  to  have  his 
share  of  the  inheritance.  And  when  it  is  declared  how 
many  are  to  divide  the  inheritance,  or  Avhere  no  cause 
can  be  shown  why  all  should  not  share,  or  if  none  of 
the  parceners  appear,  and  the  summons  is  proved,  let 
the  inheritance  be  forthwith  divided  into  so  many 
parts  as  there  are  parceners,  according  to  the  extent, 
so  that  each  portion  may  be  severed  from  the  other  by 
divisions  and  bounds. 

8.  Afterwards  let  the  parcels  be  entered  and  specified 
in  several  scrolls,  and  let  those  scrolls  be  delivered  to 
some  layman  who  knows  nothing  of  letters  or  of  the 
contents,  and  let  him  deliver  one  scroll  to  each  par- 
cener; and  according  to  the  lot  of  those  scrolls  let 
each  parcener  take  to  his  share.  *And  if  any  of  the 
parceners  has  improved  or  damaged  the  land  while  it 
was  in  his  hands,  either  in  part  or  in  the  whole,  let 
such  damage  be  taken  into  account  in  the  extent 
against  the  person  who  did  it,  and  likewise  let  his  por- 


II,  *186.]         OF  A  MIXED  ACTION.  391 

tion  be  increased  according  to  the  improvement  he  may 
have  made. 

9.  If  the  sheriff  be  negligent  in  this  matter,  we  will 
send  our  precept  to  the  coroners  of  the  district,  or  we 
will  assign  by  our  letters  patent  some  Justice  to 
execute  it.  For  such  delivery  of  shares  touches  very 
nearly  upon  the  right  of  property  by  reason  of  the 
assignment  of  boundaries;  and  it  is  therefore  neces- 
sary that  such  partitions  be  discreetly,  properly,  and 
lawfully  made. 

10.  And  whether  such  deliveries  are  made  by  lot,  or 
by  election,  the  eldest  parcener  choosing  first,  and  so 
one  after  the  other  according  to  their  ages,  let  the  par- 
cels be  presently  imbreviated  on  a  roll,  that  is  to  say, 
w^hat  each  parcel  is,  and  how  much,  and  between  what 
bounds  the  parcel  is  assigned,  and  to  what  parcener  by 
name,  so  that  all  the  parcels  of  each  share  be  enrolled,^ 
as  well  demesnes  as  fees  and  services  and  dowers  or 
other  lands  held  in  any  manner  for  term  of  life,  which 
are  to  revert  after  the  death  of  the  tenants,  and  to 
whom  these  lands  are  to  revert,  and  to  which  of  the 
parceners  the  services  of  such  tenants  are  assigned. 
And  he  to  whom  anv  service  is  assigned  towards  his 
share  shall  forthwith  take  the  homage  of  the  tenant ; 

^  '  Upon  a  division  being  made,  each  parcener  has  a  like  title 
to  liis  several.  This  title,  when  the  division  is  made  by  the  king's 
mandate,  is  a  title  of  law,  and  requires  to  be  vouched  by  record. 
But  division  made  by  assent  of  parties  requires  to  be  averred  by 
specialty  of  writing,  upon  which  issue  shall  be  joined  (le  averre- 
ment  se  joyndra).'    Note  in  MS.  N. 


392  BRITTON.  [II,  *186  I. 

and  he  who  has  to  await  the  *reversion  shall  have  as- 
signed to  him  in  the  meantime  a  portion  of  some  other 
tenement  according  to  the  value  of  the  land  which  is  to 
revert  to  hiin,  to  be  held  until  that  land  falls  in. 

11.  If  any  one  of  the  parceners  die  after  the  parti- 
tion, not  having  any  heir  of  his  body  begotten,  then 
his  share  shall  accrue  to  the  other  parceners  or  their 
issue,  to  be  divided  between  them  by  equal  portions, 
yet  not  by  succession  of  inheritance,  for  none  of  them 
is  heir  to  the  other,  but  by  right  of  accruer.^ 

12.  And  if  any  one  of  the  parceners  is  not  contented 
with  the  partition,  we  will  cause  the  proceedings  and 
the  record  to  come  before  our  Justices  of  the  Bench  ; 
and  the  plaintiff  shall  there  state  what  errors  have 
been  made,  and  the  errors  shall  there  be  redressed  by 
a  new  extent  if  need  be.  And  after  assignment  of  the 
shares,  either  by  lot  or  election,  let  seisin  be  executed 
by  judgment  of  our  court. 

^  '  Whereas  it  is  said  that  the  parceners  sliall  liave  tlie  propor- 
tion of  the  one  wlio  dies  by  right  of  accruer,  our  companions  say 
(si  dient  nos  conipaygnons)  tliat  this  is  not  so.  For  after  divi- 
sion, each  parcener  is  iniierited  of  his  portion  (est  enliite  de  sa 
purpartie),  as  if  he  liad  purchased  of  a  stranger  ;  and  if  lie  had 
purchased  of  a  stranger,  and  died  witliout  issue,  his  brothers  or 
sisters  would  be  his  heirs.'  (Note  in  MS.  N.)  The  statement  in 
tlie  text,  that  the  portion  is  taken  per  jus  accrescendi,  is  derived 
from  Bracton,  who  however  does  not  say  that  the  parceners  are 
not  heirs  to  each  other. 


II,  *187.]    DIVISION  OF  INHERITANCES.      393 


CHAPTER  VIII. 

Of  the  Division  of  Inheritances. 

1.  All  inheritances  do  not  fall  into  partition  or  hotch- 
pot, to  be  divided  among  parceners ;  as  the  capital 
manors  or  capital  castles  of  counties  or  baronies,  and 
as  parks,  vivaries,  and  advowsons  of  churches.  *But 
where  the  inheritance  is  divisible,  the  eldest  brother 
or  the  eldest  sister  by  right  of  seniority  shall  have 
the  capital  mansion  for  his  share,  unless  this  mansion 
be  the  head  of  an  earldom  or  of  a  barony,  as  is  said 
above,  by  reason  of  the  right  of  the  sword,  which 
does  not  bear  division,  and  of  the  risk  that  the 
strength  of  the  realm  may  be  diminished  thereby, 
which  strength  was  originally  constituted  and  divided 
by  counties  and  baronies. 

2.  But  if  there  are  several  capital  houses  or  castles 
of  earldoms  or  baronies,  then  partition  may  be  made 
of  such  castles  or  houses,  yet  so  as  to  leave  them  in 
their  entirety,  saving  to  the  eldest  the  prerogative  of 
choosing  first.  For  in  such  cases  the  rights  of  the 
sword  are  preserved  uninjured  and  undismembered, 
Avhich  would  not  be  if  one  capital  mansion  of  an  earl- 
dom or  barony  was  divided  among  several  persons. 
For  if  there  be  but  one  castle  or  one  house  as  head 
of  the   earldom  or  barony,  that  shall   remain   entire 


394  BRITTON.  [II,  *187  5. 

to  the  eldest,  so  that  a  proportionate  allowance  be 
made  to  the  others  according  to  its  value,  out  of  the 
remainder  of  the  inheritance. 

3.  If  there  are  several  capital  mansions,  then  let  the 
eldest  have  the  first  choice  after  the  inheritance  is 
divided  into  parcels,  and  the  second  next,  and  so  of  the 
other  degrees,  descending  from  degree  to  degree.  And 
if  there  are  more  parceners  than  there  are  capital 
mansions,  then  let  that  parcener  who  has  no  house 
fallen  into  his  share  have  the  value  of  a  house  delivered 
to  him  out  of  the  entire  inheritance.  *And  if  there  are 
more  capital  houses  than  parceners,  let  the  houses  in 
excess  be  divided  among  them  in  equal  portions,  unless 
the  parceners  agree  that  some  or  all  of  them  shall 
remain  entirely  with  one  or  more  of  the  parceners,  and 
that  an  allowance  in  proportion  to  the  value  be  made 
to  the  others.  And  if  there  is  but  one  capital  mansion, 
let  not  that  be  subject  to  partition,  provided  that  there 
is  some  other  part  of  the  inheritance  out  of  which 
satisfaction  can  be  made  to  the  parceners  of  the  value 
of  their  proportions,  supposing  that  the  inheritance  is 
partible  by  custom.  If  otherwise,  it  will  remain  en- 
tirely to  the  eldest. 

4.  With  regard  to  lands  in  ancient  demesne,  the 
ancient  custom  of  the  place  shall  be  observed  ;  for  in 
some  places  it  is  held  as  a  custom  that  the  inheritance 
is  divisible  among  all  the  children,  both  brothers  and 
sisters ;  in  some  places,  that  the  eldest  son  shall  take 
all  and  in  others,  that  the  whole  shall  go  to  the  young- 
est brother. 


II,  *188.]     DIVISION  OF  IKIIERITANCES.     395 

5.  Sometimes  the  hall  of  a  house  is  divided  into  two 
halves,  or  into  several  parts  ;  and  sometimes  it  is  sep- 
arated from  the  chambers,  and  so  of  other  buildings, 
as  shall  be  mentioned  in  treating  of  pleas  of  dower. 
But  advowsons  of  churches,  servitudes  of  soil,  and  such 
kinds  of  incorporeal  things,  are  from  their  nature  in- 
capable of  partition.  Nevertheless  several  advowsons 
and  several  rights  may  admit  of  a  partition  among 
parceners,  where  each  right  remains  entire.  *But  the 
advowson  of  a  single  church  ought  not  to  be  divided, 
although  sometimes  the  body  of  the  church  may  have 
become  partible  or  divisible  in  ancient  times  by  reason 
of  different  baronies.  For  if  a  church  is  void  by  the 
death  of  the  parson,  and  several  parceners  are  patrons 
as  one  heir  and  one  body,  by  reason  of  the  unity  of 
their  right,  no  one  has  a  right  to  present  to  such  church 
without  the  others,  until  the  advowson  be  wholly  as- 
signed to  one  of  the  parceners  as  part  of  his  share,  or 
so  limited  by  agreement  between  them,  that  one  shall 
present  one  turn,  the  second  the  next  turn,  and  so 
on  in  succession.  And  if  any  one  before  such  agree- 
ment offers  to  present  by  reason  of  seniority,  the  clerk 
shall  not  be  admissible  to  institution,  so  long  as  any  of 
the  parceners  oppose  the  presentation, 

6.  The  like  of  servitudes ;  for  if  a  tenement  to  Avhich 
a  servitude  is  due  falls  in  partition  and  division 
among  parceners,  the  servitude  is  neither  diminished 
nor  altered,  but  remains  in  its  unity  so  far  as  regards 
the  land  charged.  And  although  a  servitude  is  divided 
into  several  parts,  as  regards  the  land  to  w^hich  it  is  due 


396  BRITTON.  [II,  *188  h. 

by  reason  of  the  plurality  of  parceners,  and  although 
there  may  be  several  entire  rights  thereto,  yet  the  land 
shall  not  be  more  burdened  than  it  was  before  the 
partition,  and  thus  the  servitude  shall  remain  in 
its  unity. 

Y.  There  are  some  parts  of  an  inheritance  which  will 
not  admit  of  a  division,  *and  tlierefore  ought  to  be 
wholly  assigned  to  one  of  the  parceners,  satisfaction 
being  made  to  the  others  according  to  the  value  out  of 
the  remainder  of  the  inheritance.  Such  are  vivaries^ 
fisheries,  hays,  and  parks,  provided  there  are  other 
hereditaments  whereout  satisfaction  may  be  made  in 
proportion  to  the  other  parceners.  Nevertheless  the 
parties  may  come  to  terms,  and  it  is  allowable,  if  they 
so  agree,  that  one  of  them  shall  have  one  draught  or 
one  fish,  or  one  beast  in  the  park,  and  the  second  an- 
other, and  a  third  the  third  and  so  on. 

8.  With  respect  to  land  or  other  hereditament  be- 
fore given  with  any  of  the  parceners  in  frank  mar- 
riage, the  usage  shall  be  this  ;  that  if  she  to  whom  the 
land  was  given  in  marriage  chooses  to  share  in  the  in- 
heritance whereof  their  common  ancestor  died  seised 
in  demesne  as  of  fee,  she  shall  yield  up  and  relinquish 
that  wiiich  was  before  given  her  in  marriage,  and  it 
shall  fall  into  hotchpot  with  the  remainder  of  the  in- 
heritance, and  then  she  shall  take  her  share  according 
to  the  chance  of  the  allotment  with  her  other  par- 
ceners. And  if  she  keeps  to  her  estate  in  marriage  for 
her  share,  still  it  must  be  seen  whether  this  is  worth 
more  than    belongs  to  her  proportion  or  not.     For  if 


II,  *189]     DIVISION  OF  INHEPJTANCES.      397 

more,  a  measurement  shall  be  made, — and  this  whether 
the  land  came  by  descent  from  the  part  of  the  father 
*orof  the  mother  or  by  purchase, — and  the  excess  shall 
be  divided  by  equal  portions  between  all  the  parceners. 
The  same  usage  shall  hold  Avhere  a  mother  in  her 
widowhood  gives  to  any  of  her  daughters  all  her  es- 
tate held  in  marriage.  But  where  the  feoffment  is  ab- 
solute, partition  never  takes  place.  For  we  will  that 
such  gifts  b}'^  pure  feoffment  without  mention  of  mar- 
riage shall  be  held  as  valid  in  the  case  of  privies  of 
blood  as  they  would  be  in  that  of  a  stranger.  And  if 
either  father  or  mother  or  both  give  to  one  of  the  par- 
ceners in  marriage  all  their  inheritance,  in  such  case 
the  inheritance  shall  not  fall  into  partition,  because 
nothing  remains  to  be  divided  between  the  other  par- 
ceners. 

9.  If  the  eldest  die  in  the  lifetime  of  her  father  or 
mother  from  whom  the  inheritance  is  to  descend,  the 
second  daughter  shall  have  her  prerogative  of  election, 
although  the  deceased  have  left  behind  her  a  son  or  a 
daughter  lawfully  begotten,  because  the  eldest  did  not 
survive  her  ancestor,  whose  heir  she  would  have  been. 
We  have  next  to  deal  with  the  action  de  rationahili 
parte. 


398  BRITTOK  [II,  *189  h. 


CHAPTER  IX. 

Of  the  Plea  tie  Rationabili  Parte.^ 

1.  "When  any  of  the  parceners  is  deforced  by  his 
coparceners  of  all  his  reasonable  share  of  the  inherit- 
ance of  their  common  ancestor,  the  proper  proceeding 
is  by  the  writ  close  de  rationahili  jparte^  and  not  by 
assise  of  Mortdancester.  *For  this  writ,  and  no  other, 
tries  and  determines  the  right  of  possession  between 
parceners  and  coheirs,  because  at  the  instant  of  the  an- 
cestor's death  every  parcener  has  the  same  undivided 
right,  and  the  mere  right  descended  to  each  equally, — 
the  youngest  as  well  as  the  eldest, — which  is  not  the 
case  between  brothers  or  other  kindred,  not  being 
parceners,  where  the  mere  right  descends  sooner  to  one 
than  to  the  other. 

2.  There  are  other  kind  of  writs  de  rationabili  parte ^ 
for  there  is  one  concerning  the  possession,  and  three 
concerning  right.  The  possessory  writ  does  not  lie 
between  strangers,  but  between  parceners  only,  and 
it  is  a  close  writ.  Its  effect  is  to  require  an  answer 
as  well  from  several  to  one  as  from  one  to  several, 
wherefore  he  deforces  them  of  the   reasonable  share 

1  The  greater  part  of  the  materials  of  this  chapter  appears  to 
be  in  Fleta,  though  not  always  in  the  same  order,  and  not  in 
Bracton. 


II,  *10().]       DE  IIATIONABILI  PARTE.  399 

belonging  to  thein  of  the  inheritance  which  was  of 
such  an  one  their  father,  mother,  brother,  sister,  uncle, 
aunt,  grandfather,  grandmother,  or  cousin,  who  lately 
died,  as  it  is  said.  Or  if  any  parcener  be  in  a  more 
remote  degree  than  another,  then  thus :  of  the  in- 
heritance which  belonged  to  such  an  one,  father  of 
the  aforesaid  Ilelice,  and  grandfather  of  the  aforesaid 
Peronel,  and  so  on  according  to  the  degrees. 

3.  This  writ  lies  only  between  parcener  plaintiff  and 
parcener  tenant,  and  extends  as  far  as  the  time  limited 
in  an  assise  of  Novel  Disseisin,  and  not  further,  by 
reason  of  the  word  '  lately,'  ^  which  does  not  suppose 
a  longer  time.  And  this  w^rit  extends  to  every  ances- 
tor in  the  ascending  *line  as  far  as  the  great-great- 
grandfather, and  in  the  descending  to  the  nephew  in 
the  lowest  degree,  so  far  as  the  time  aforesaid  will  per- 
mit. If  the  plaintiff  in  this  writ  count  in  the  right, 
the  writ  is  abatable  for  the  reason  which  shall  be 
given  in  the  Chapter  of  Cosinage. 

4.  There  are  three  writs  of  right,  and  these  ought 
to  be  open  writs,  and  are  pleadable  in  the  court  of  the 
chief  lord.  Two  of  them  lie  at  any  time  either  with- 
in or  after  the  term  aforesaid  ;  w^hereof  one  serves  to 
recover  a  part  of  the  inheritance,  where  a  parcener  is 
seised  of  part,  and  lacks  the  residue  of  his  reasonable 
share  ;  and  the  other  serves  to  recover  the  appurte- 
nances, in  all  or  in  part,  where  he  is  deprived  of  them 
by  his  coparceners.  The  third  writ  of  right  takes 
place  after  the  time  aforesaid,  to  recover  the  whole 

'  1  The  Latin  word  in  the  writ  is  nuper.    Fie.  315  (§  40). 


400  BRITTON.  [II,  *190  h. 

of  the  reasonable  share  ;  as,  where  one  parcener  is  de- 
forceor, and  the  coparceners  negligently  omit  to  de- 
mand their  portions  beyond  the  time  limited  in  an 
assise  of  Novel  Disseisin;  for  thenceforth  such 
sleepers  shall  be  foreclosed  of  their  recovery  by  the 
close  writ  de  rationabili  j?arte,  so  that  they  shall 
never  recover  against  the  parcener  deforceor  but  by 
writ  of  right  patent  de  rationabili  jparte ;  in  which 
writ  exceptions  lie  as  in  the  great  writ  of  right,  but 
not  battle,  nor  great  assise,  by  reason  of  the  nearness 
of  blood. 

5.  When  the  close  writ  is  obtained,  and  surety 
found  to  prosecute,  and  the  summons  made  and 
proved,  in  case  the  tenant  parcener  *or  parceners 
make  default,  although  the  action  seems  to  be  per- 
sonal, because  no  certain  thing  is  demanded,  yet  no 
attachment  shall  be  made  except  by  the  great  Cape^  of 
the  bulk  of  the  inheritance  to  the  value  of  the  share 
of  the  plaintiff. 

6.  If  several  parceners  are  tenants  in  common  or  in 
proportions,  and  the  writ  does  not  comprise  them  all, 
the  writ  is  thereby  defective  and  abatable.  For  their 
right  is  so  far  one,  that  one  ought  not  to  answer  without 
the  rest  on  account  of  contribution.  And  if  any  one 
of  them  do  so,  it  shall  not  prejudice  the  other  parce- 
ners tenants.  And  where  several  parceners  are  plain- 
tiffs, unless  each  makes  his  plaint  separately,  the  writ 
shall  be  abatable,  because  such  a  writ  obtained  on  a 
joint  plaint  cannot  lead  to  a  judgment  that  every  one 
shall  have  his  reasonable  share.     In  this  plea  there  lies 


II,  ]91.]        DE  EAT10XA13ILI  PARTE.  401 

neither  view,  nor  vouclier  to  warranty,  nor  abate- 
ment of  writ  for  non-tenure. 

7.  When  the  parties  are  come  into  court,  the  de- 
forceor may  plead  that  the  kind  is  not  partible  ;  or 
that  the  plaintiff  hath  no  right  in  his  demand  because 
he  is  not  of  the  blood  ;  or,  although  he  be  of  the  blood, 
yet  he  ought  not  to  have  any  share,  or  to  be  a  parcener 
with  the  tenant  for  a  certain  reason  ;  or  although  he 
should  have  been  a  parcener,  yet  he  was  excluded 
from  the  succession  by  the  form  of  gift  of  his  ances- 
tor. 

*8.  If  any  one  who  was  enfeoflfed  of  all  or  a  part  of 
the  inheritance  by  the  common  ancestor  of  the  par- 
ceners is  impleaded  thereof,  he  shall  vouch  to  war- 
ranty, not  one  only,  but  all  the  parceners  ;  and  if  he 
do  not,  and  the  voucher  be  challenged,  the  tenant 
may  lose  by  his  foolish  voucher.  For  since  there  is 
only  one  right,  it  would  be  unjust  to  make  one  of  the 
parceners  answerable  for  the  entire  right,  and  to 
oblige  him  to  make  warranty  or  exchange  without  the 
rest  of  the  parceners  making  contribution  according 
as  belongs  to  each  of  them  ;  for  else  he  would  not  re- 
tain his  reasonable  share.  Nevertheless  where  one 
alone  is  vouched,  and  he  enters  into  warranty  with- 
out demanding  aid  of  his  parceners,  the  other  parce- 
ners, if  he  miscarry,  shall  not  be  bound  to  contribute 
to  make  up  his  share. 

9.  Although  the  issue  of  one  of  the  sisters  be  be- 
gotten in  matrimony  b}''  a  villain,  yet  such  issue  shall 

not'thereby  be  barred  from  recovering  his  reasonable 
26 


402  BRIXTON.  [II,  *191  h. 

share  from  his  aunt.  But  felony,  bastardy,  and  the 
like  general  exceptions,  may  bar  such  plaintiffs  from 
recovering  their  proportions. 


*CHAPTER  X. 

Of  Summons,  and  other  proceedings  in  the  Assise  of 
Moi'tdancester. 

1.  The  writ  of  Mortdancester  being  obtained  accord- 
ing to  the  nature  of  the  plaint,  and  the  patent  pro- 
duced to  our  Justices,  we  will  that,  inasmuch  as  assises 
of  Mortdancester  and  Novel  Disseisin  are  pleadable 
only  in  the  counties  where  the  tenements  lie,  our  Jus- 
tices, upon  sight  of  our  letters  patent,  shall  set  a  day 
to  the  plaintiff,  and  afterwards  give  notice  by  their 
letter  to  the  sheriff  of  the  count}'^  on  what  day  and  at 
what  place  in  the  county  they  will  come  to  hear  the 
plea.  Then  let  the  plaintiff  take  that  letter  and  our 
writ  close  and  carry  them  to  the  sheriff,  and  keep  the 
patent  by  him  until  the  day  of  plea. 

2.  The  sheriff  having  received  our  writ,  and  taken 
pledges  to  prosecute,  if  required  by  our  writ,  shall 
forthwith  cause  jurors  to  be  chosen  of  the  neighbour- 
hood by  the  assent  of  the  parties,  if  they  agree.  And 
when  they  are  chosen,  let  two  freemen,  terre-tenants, 
be  enjoined  to  summon  these  jurors  in  their  proper 
persons,  as  shall  be  mentioned  in  the  chapter  concern- 
ing summons  in  the  writ  of  right.  And  the  sheriff 
shall  command  them  to  summon  tlie  jurors  to  be  at  a 


II,  *192.]  OF  SUMMONS.  403 

certain  tlay  and  jDlace  before  our  Justices,  to  malce  re- 
cognisance, whether  such  an  one  is  dead,  and  whether 
he  died  since  the  time  named  in  our  writ  seised  of  the 
tenement  in  such  a  vill  in  his  demesne  as  of  fee,  and 
whether  such  plaintiff  is  his  aext  heir  ;  and  that  in 
the  meantime  they  view  the  tenement,  as  before  has 
been  mentioned  among  the  proceedings  in  novel  dis- 
seisin, so  that  every  juror  *in  all  particulars  be  dis- 
tinctly warned,  fifteen  days  at  least  before  his  coming 
into  our  court,  upon  what  point  he  ought  to  inform 
himself.  And  let  the  summoners  be  charged  to  be 
tliere  on  the  same  day  to  prove  their  summons  ;  as  is 
tlie  rule  with  all  summoners  upon  every  summons. 

3.  Upon  the  day  named  the  parties  may  be  essoined 
de  mah  vetiiendi  ;  and  if  tlie  plaintiff  is  essoined  on  the 
first  day,  and  the  tenant  offers  himself,  then  another 
day  shall  be  given  to  the  tenant  and  to  the  plaintiff's 
essoiner  ;  at  which  day  if  the  plaintiff  does  not  appear 
to  warrant  his  essoiner,  the  writ  shall  abate,  and  it 
shall  be  awarded  that  the  tenant  go  quit  without  day, 
and  that  the  plaintiff  and  his  pledges  to  prosecute  be 
in  mercy.  And  if  the  plaintiff  appears,  and  the  tenant 
causes  himself  to  be  essoined  de  malo  veniendi,  it  shall 
be  allowed,  if  he  is  of  full  age,  and  another  day  shall 
be  given  to  the  plaintiff  and  to  the  tenant's  essoiner ; 
so  that  in  this  assise  one  essoin  de  malo  veniendi  lies 
for  each  party,  and  no  more  essoins  are  allowed, 
although  there  be  several  demandants  or  several 
tenants  where  they  demand  or  hold  in  common.  But 
let  no  essoin  be  allowed  to  any  person  under  age  for 


404  BPJTTOX.  [ir,  *193. 

the  reason  which  shall  be  given  in  the  plea  of  right. 
Neither  let  anv  essoin  be  allowed  to  the  tenant  thousfh 
of  full  age,  as  against  an  infant  under  age  demandant, 
but  let  the  assise  be  presently  taken  by  default  of  the 
tenant,  and  no  resummons  take  place. 

4.  If  the  tenant  is  under  age,  regard  must  be  had 
how  and  by  what  title  he  is  in  seisin  ;  for  if  he  is  in  any 
manner  seized  by  title  of  purchase,  the  assise  im- 
mediately lies  ;  but  in  such  case  he  may  avail  himself 
of  an  essoin  as  well  as  one  of  full  age.  If  by  title  of 
succession,  another  inquiry  is  necessary  ;  for  if  his 
ancestor  died  seised  in  his  demesne  as  of  fee,  he  shall 
not  answer,  but  the  assise  shall  stand  over  till  he  is  of 
age,  however  he  may  perchance  answer  to  the  writ  of 
entry  of  the  disseisin  of  his  ancestor.  But  if  he  did 
not  die  seised  in  his  demesne  as  of  fee,  inasmuch  as  he 
held  only  for  term  of  life,  the  assise  shall  not  stand 
over.  And  if  he  tlied  seised  for  a  certain  term  under 
a  condition,  or  by  judgment  of  our  court,  in  such 
cases  it  will  be  necessary  to  know  whether  the  condition 
is  satisfied,  or  the  judgment  executed,  or  not ;  and 
the  assise  shall  ])ass  or  stand  over  accordingly. 

5.  If  there  are  several  plaintiffs  .  Avho  demand  by 
this  assise,  or  if  it  is  brought  against  several  tenants, 
then  it  must  be  observed  whether  they  are  parceners 
entitled  as  one  heir,  or  strangers  to  each  other,  and 
whether  one  or  more  are  under  age,  or  all  of  full  age, 
and  whether  they  hold  in  *severalty  or  in  common. 
And  although  one  or  all  or  some  of  the  plaintiffs  are 
under  age,  yet  the  assise  shall  not  stand  over  respecting 


II,  193  k]  OF  SUMMONS.  405 

the  tenements  held  in  severalty,  on  account  of  their 
nonage,  except  only  as  against  the  chief  lord.  But  if 
one  or  more  or  all  of  the  tenants  are  under  age,  and 
their  tenements  are  not  severed,  but  are  held  in 
common,  in  such  case  the  assise  shall  be  stayed  until 
the  youngest  has  attained  his  age  and  they  are  all  of 
full  age  ;  and  this  by  reason  of  the  unity  of  their 
right,  which  has  not  yet  been  divided,  and  concerning 
which  one  cannot  answer  without  the  other  as  lonjr 
as  the  tenement  is  held  in  common.  But  if  each  knew 
his  several,  then  the  assise  should  pass  so  far  as 
regards  those  that  are  of  age. 

6.  Where  several  daughters  and  coheirs  have  brought 
this  assise  against  the  chief  lord,  the  assise  shall  pass 
for  those  that  are  of  full  age,  provided  there  is  no 
dispute  respecting  their  marriages  ;  ^  but  with  regard 
to  the  others  who  are  under  age,  the  assise  shall 
stand  over  till  they  are  of  age ;  and  when  they  have 
attained  their  age,  they  shall  recover  their  reasonable 
shares  either  by  this  assise  against  the  chief  lord,  or 
by  writ  close  de  rationabili  parte  against  the  other 
sisters,  if  they  are  deforceors. 

7.  Where  a  common  inheritance  is  divided  between 
parceners,  the  assise  need  only  be  brought  against  him 
or  them  who  hold  the  tenement  demanded.  *But  if 
any  parcener  be  summoned  and  appear  in  court,  and 
say  that  he  cannot  answer  without  his  parceners  by 

^  That  is.  provided  the  lord  lias  no  claim  against  the  land  for 
the  A-alne  of  the  marriages  of  the  several  demandants.  See  be- 
fore, 1.  iii.  c.  ;5.  s.  3,  note. 


406  BRITTON.  [II,  *194. 

j^eason  of  the  unity  of  right  which  is  between  them, 
the  writ  shall  not  thereby  abate,  but  the  other  parce- 
ners shall  be  summoned  to  come  and  answer,  so  that  if 
he  against  whom  the  plaint  is  made  shall  lose,  he  shall 
not  do  so  without  all  the  other  parceners  being  bound 
to  contribute.  But  where  they  hold  in  common,  the 
writ  abates  if  all  are  not  named. 

8.  If  the  tenant  makes  default,  and  the  plaintiif 
presents  himself,  command  shall  be  given  to  thesheritf 
that  the  tenant  be  resummoned  to  be  before  the  Justices 
another  day  to  hear  the  recognisance  of  the  assise,  and 
to  answer  why  he  was  not  before  them  on  such  a  day 
according  as  he  was  summoned ;  after  which  resum- 
mons he  shall  not  be  essoined.  But  whether  the  tenant 
cause  himself  to  be  essoinedor  otherwise  make  default, 
the  recognisance  of  the  assise  shall  be  taken  by  default. 
]Meither  does  a  resummons  ever  lie  after  an  essoin,  for 
by  the  essoin  cast  for  the  tenant  he  admits  the  sum- 
mons. 

9.  When  the  tenant  comes  into  court  by  resummons, 
first  let  him  answer  for  his  contumacy,  as  to  which  ho 
may  say  that  he  was  not  summoned.  Antl  thereu])on 
let  the  summoners  be  examined,  and  if  upon  examination 
they  are  found  to  disagree  *in  the  circumstances  of  the 
summoning,  let  the  tenant  be  adjudged  quit  as  to  the 
default,  and  the  summoners  in  mercy.  And  if  they 
are  found  to  agree,  then  he  may  defend  the  summons 
by  his  law  ;  and  for  the  more  speedy  dispatch  of 
justice,  let  him  forthwith  make  his  law  by  himself 
alone,  that  he  did  not  know  of  any  summons  before 


ir,  *194  J.]  OF  SUMMONS.  407 

tlie  day  of  the  former  session,  and  be  quit  of  the 
default ;  and  let  him  straightway  answer  to  the  assise. 
But  if  he  has  been  essoined,  he  cannot  afterwards  deny 
the  summons. 

10.  "Where  the  tenant  appears  on  the  first  day,  he 
may  still  put  off  the  day  of  assise  by  excepting  that 
he  had  not  a  reasonable  summons ;  as  where  it  was 
made  the  day  before  the  session  of  the  Justices,  or 
two  or  three  days,  or  less  than  fifteen  days  before. 
This  objection  shall  be  tried  by  examination  of  the 
summoners  as  above  mentioned ;  and  if  it  be  found 
that  he  had  not  a  reasonable  summons,  let  the  parties 
4ind  the  assise  be  adjourned  to  another  day ;  at 
which  day  he  may  be  essoined.  And  if  at  that  day 
he  make  default,  he  shall  not  be  resummoned  ;  for  he 
may  not  deny  the  adjournment  of  the  J  ustices ;  but 
the  assise,  if  ready,  shall  be  taken  by  his  default. 
And  if  it  is  not  then  ready  the  plaintiff  shall  be 
iidjourned  to  another  day,  and  the  sheriff  shall  be 
commanded  that  he  then  have  the  bodies  of  those  of 
the  assise.  At  which  day  let  such  of  the  assise  as 
Avere  not  present  on  the  former  day  pursuant  to  their 
summons  be  amerced,  if  they  cannot  excuse  themselves 
respecting  the  summons. 

"11.  Although  the  tenant  come  into  court  on  the 
adjourned  day,  and  is  ready  to  answer,  yet  he  shall 
not  be  admitted  thereto,  for  the  contempt  done  to  us 
and  our  court  by  his  neglect,  except  in  some  special 
cases,  as  to  produce  some  charter  whereby  the  jurors 
may  be  better  informed,  or  at  the  least  whereby  be 


408  BlilTTOK  [II,  *195. 

may  vouch  some  person  to  warrant ;  in  which  case 
we  allow  him  to  be  admitted  thereto,  but  not  to  allege 
any  reason  to  stay  the  assise,  nor  to  plead  any  dilatory 
exceptions.  I^either  shall  he  be  admitted  to  plead 
peremptory  exceptions,  Avherein  perhaps  he  might  say 
that  the  ancestor  of  whose  death  the  assise  is  brought 
held  the  lands  only  for  term  of  his  life  by  a  fine  levied 
in  our  court,^  or  the  exception  of  felony,  or  other 
peremptory  exceptions ;  but  the  recognisance  of  the 
assise  shall  be  taken,  and  it  shall  be  awarded  that  he 
be  in  our  mercy  for  his  default. 

12.  When  the  parties  come  in  court  without  making 
default,  let  the  plaintiff  straightway  deliver  his  patent 
to  the  Justices ;  and  if  it  is  found  to  be  sufficient  war- 
rant for  them,  then  let  them  cause  such  writ,  together 
with  the  original  writ  close  which  was  sent  to  the  sher- 
iff, to  be  read  in  audienci^  And  then  let  the  plaintiff 
state  his  contention  according  to  the  articles  of  the  ori- 
ginal writ,  and  say  how  he  is  next  heir  to  such  ances- 
tor. 

13.  And  if  the  tenant  has  nothing  to  object,  or  if 
he  denies  the  demand  of  the  plaintiff  and  contradicts 
the  substance  of  his  contention  *wholly  or  in  part,  let 
the  truth  be  inquired  by  twelve  jurors,  and  not  less, 
summoned  for  that  purpose,  whereof  seven  at  least 
shall  have  been  present  at  the  view,  and  none  of  whom 

^  111  this  point  our  author  diflfers  from  Bracton  (f.  255),  who 
states  the  exceptions  liere  mentioned  as  those  which  might  l>e 
pleaded  by  tlie  tenant  in  default.  Fleta  appears  to  agree  with 
Britton. 


II,  ^195  h.-]  OF  SUMMONS.  409 

are  removable  by  just  challenge  of  the  parties.  They 
shall  take  the  oath,  as  hath  been  said  before  in  the 
assise  of  novel  disseisin  ;  and  judgment  shall  be  given 
according  to  their  verdict  either  for  the  plaintiff  or 
for  the  tenant. 

14.  If  the  assise  has  been  taken  upon  the  substance^ 
and  upon  the  points  mentioned  in  the  writ,  and  either 
party  feels  himself  aggrieved  by  the  verdict,  whether 
the  assise  Avas  taken  by  the  tenant's  default  or  not, 
and  whether  the  tenant  put  himself  as  to  the  point 
in  question  upon  the  verdict  of  the  assise  or  not, 
the  party  aggrieved  shall  have  his  remedy  by  attaint- 
The  like  upon  a  false  oath  by  the  assise  touching  any 
exception,  as  an  exception  of  villenage  and  naifty,  or 
of  fine  levied  in  our  court,  or  of  any  covenant,  or 
of  a  judgment  before  given  in  our  court  concerning 
the  same  tenemeiit,  or  upon  other  like  manifest  excep- 
tion. But  in  exceptions  upon  which  verdicts  are  pro- 
nounced by  way  of  jury  and  not  of  assise,  and  upon 
Avhich  the  parties  have  put  themselves  by  consent,  antl 
against  which  verdicts  there  is  no  evident  presumption 
of  perjury,  attaints  shall  not  be  allowed,  inasmuch  as 
the  jurors  are  by  the  assent  of  both  parties  made  as  it 
were  judicial  arbitrators. 

*15.  If  the  parties  agree  before  taking  the  recognisance 
of  the  assise,  let  the  accord  be  received  and  enrolled, 
and  according  to  the  enrolment  let  the  sheriff  be  com- 
manded to  deliver  seisin.  And  we  will  that  parties 
pleading,  if  they  pray  leave  to  accord  in  our  court, 
shall  have  leave  for  that  purpose,  except  in  felonies  in 


410  BKITTOTs^  [II,  *190. 

which  a  man's  life  is  in  peril,  saving  to  us  the  amerce- 
ments to  us  belonging. 

16.  If  any  one  by  assise  of  Mortdancester  recovers 
seisin  of  his  inheritance  out  of  the  hands  of  the  lord  of 
the  fee  claiming  wardship,  where  the  fee  is  neither  held 
in  chivalry  nor  in  grand  serjeanty,  or  if  the  kindred 
of  any  infant  in  ward  recover  seisin  of  the  inheritance 
of  the  heir  in  ward  on  account  of  waste  and  destruc- 
tion committed  by  the  lord  in  the  wardship,  the  pro- 
ceedings in  the  plea  shall  be  enrolled,  and  according 
to  the  enrolment  the  sheriff  shall  be  commanded  to 
deliver  seisin  as  aforesaid. 


CHAPTER  XL 

Of  Warranties  in  Assise  of  Mortdancester. 

1.  When  the  parties  are  at  trial  and  the  jurors  ready, 
if  the  tenant  has  any  warrant  who  is  bound  to  warrant 
and  defend  him  in  his  seisin,  it  is  more  for  his  advantage 
to  vouch  him  than  at  his  own  peril  to  take  upon  him- 
self to  defend  the  tenement  against  the  plaintiff. 
And  if  he  vouches,  then  it  is  material  whether  the 
warrant  vouched  be  under  age  or  of  full  age.  If  under 
age,  the  tenant  must  produce  a  charter  to  the  guardian, 
or  show  that  *homage  was  done  to  the  infant's  ancestor 
wliose  heir  he  is,  or  some  other  clear  reason  why  he  is 
bound  to  warranty  ;  otherwise  the  vouchee  under  age 
shall  not  answer. 

2.  If  the  warrant  be  of  full  age,  then  there  is  no 
need  to   show  a  charter  or   other   presumption ;  but 


II,  *196.]  OF  WARRANTIES.  411 

he  may  be  vouched  by  aid  of  the  court,  or  without 
aid,  as  shall  be  said  in  treating  of  warranties  in  a 
writ  of  right."  ^  If  it  be  done  bj'  aid  of  the  court, 
and  the  warrant  resides  in  the  county,  let  the  sheriff 
be  coranianded  to  summon  him  to  appear  before  the 
same  Justices  on  another  day,  to  warrant  according  as 
he  shall  be  vouched,  or  to  refuse.  And  if  the  warrant 
has  land  elsewhere,  and  none  in  that  county,  let  him 
be  summoned  by  our  writ  of  judgment.^ 

3.  If  the  tenant  vouches  to  warrant  separately, 
where  he  ought  to  vouch  more  than  one  together,  or 
many  where  he  ought  to  vouch  only  one,  and  the 
warrants  demand  judgment  of  the  bad  voucher,  in 
such  case  the  tenant  shall  fail  in  his  voucher,  as  he 
would  have  done  in  case  of  a  writ  ill  purchased. 

4.  When  the  tenant  has  vouched  to  warrant  any  one 
who  comes  into  court  and  warrants  him,  or  several 
tenants  in  common  as  one  heir,  who  warrant  him,  and 
these  vouch  some  other,  and  so  on  from  w^arrant  to 
warrant,    if   any  one   of   the   w^liole    number    makes 

1  The  chapter  here  referred  to  is  wanting  in  all  the  copies.  See 
before,  vol.  i.  p.  107,  note  ;  and  see  the  last  chapter  of  Britton, 
s.  5,  where  reference  is  made  to  tlie  sanae  chapter  alluded  to 
above.  As  to  the  incompleteness  of  the  work,  see  the  Introduc- 
tion by  the  Editor. 

■^  If  the  vouchee  had  land  in  the  coiinty,  he  was  summoned 
without  writ  by  precept  of  the  Justices  to  the  sheriff ;  if  his  land 
was  in  another  county,  it  was  nec;essary  to  obtain  a  writ  out  of 
tlie  Chancery.  See  the  parallel  passages  of  Bracton  and  Fleta. 
The  expression  '  writ  of  judgment '  is  in  Fleta,  not  in  Bracton. 
The  form  of  the  judicial  writ  is  in  Reg.  Brev.  Judic.  46  h. 


412  BKITTO]S\  [II,  *19T. 

default,  the  assise  shall  be  taken  by  his  default,  as  if 
all  had  made  default,  whether  they  be  any  of  them 
under  age  or  not.  *And  what  is  said  concerning 
one  tenant,  shall  be  observed  where  there  are  sev- 
eral. 

5.  If  the  warrant  appears  at  the  day  for  which  he  is 
summoned,  and  the  plaintiff  also,  but  not  the  tenant, 
let  the  assise  be  forthwith  taken  by  the  default  of  the 
tenant,  if  the  jurors  are  present;  and  if  not,  let  an- 
other day  be  given  to  the  parties.  And  if  the  warrant 
has  waited  until  the  fourth  day,  let  it  be  awarded  that 
he  go  quit  of  his  warranty  without  day,  and  that  the 
assise  be  taken  by  the  default  of  the  tenant,  as  above 
said.  The  reason  why  the  plaintiff  shall  not  straight- 
way recover  his  demand  without  recognisance  of  the 
assise,  is  because  all  the  points  of  his  writ  or  some  of  them 
may  be  false ;  for  although  the  tenement  demanded 
ceases  presumptively  to  be  the  tenant's  by  reason  of 
his  default,  yet  still  it  is  necessary  that  our  court  bo 
informed  of  the  right  of  the  plaintiff  ;  for  if  the  assise 
say  that  the  plaintiff  hath  no  right  in  his  demand, 
there  is  no  reason  that  he  should  recover,  inasmuch 
as  he  cannot  prove  the  points  of  his  case. 

6.  If  the  tenant  appears  and  the  warrants  also,  and 
the  plaintiff  makes  default  on  the  fourth  day,  let  it  be 
awarded  that  the  tenant  go  quit  of  that  writ  without 
day,  and  the  warrants  of  their  warranty,  and  that  the 
plaintiff  and  his  pledges  of  suit  remain  in  mercy  in  our 
court. 

7.  If  the  tenant  and  the  plaintiff  a])i>ear  in   court,, 


II,  *197.]  OF  WARRANTIES.  413 

and  *the  warrant  makes  default,  let  the  assise  be  taken 
by  the  default  of  the  warrant,  but  let  no  caption  of 
land  be  awarded  against  the  warrant  until  it  be  known 
by  the  assise  whether  the  tenant  ought  to  retain  the 
land  or  to  lose  it.  For  if  he  ought  to  retain  it,  then 
there  will  be  no  need  of  proceeding  to  the  plea  of 
warranty. 

8.  And  if  the  taking  of  the  assise  is  delayed  by  any 
chance  to  another  day,  and  the  warrant  comes  on  that 
day  and  is  ready  to  warrant,  yet  he  shall  not  be  ad- 
mitted thereto,  except  with  a  view  to  making  the  ex- 
changes,*- before  the  assise  is  taken  in  form  of  assise  ; 
and  this  for  three  reasons;  first,  because  he  had  no 
day  given  him  to  warrant  ;  secondly,  because  he  lost 
the  benefit  of  his  exceptions  and  all  his  defences  by  the 
default  which  he  made  on  the  former  day ;  and 
thirdly,  because  there  is  no  need  of  his  being  admitted 
thereto  before  the  necessity  of  it  is  known,  as  hath 
been  said  above.  Hence  it  is  apparent  that  there  is 
no  need  of  his  presence  until  he  is  caused  to  appear  by 
distress,  after  the  assise  has  passed  against  the  tenant. 
For  if  he  were  allowed  to  come  into  court  after  his 
default,  and  to  warrant  and  say,  '  I  warrant,  and  I 
restore  the  tenement  demanded  to  the  phdntifi",'  the 
warrant  would  be  guilty  of  a  manifest  disseisin  against 
the  tenant,  if  it  were  done  against  his  consent,  and 
particularly  as  the  warrant  had  then  no  day  in  court. 
For  although  the  warrant  is  obliged  to  defend  his 
tenant  in  his  possession,  he  ought  not  upon  that  pre 
^  See  below,  s.  16. 


414  BRITTOK  [II,  *19T  h. 

tence  *to  disseise  him  by  surrendering  to  the  plaintiff 
his  demand,  inasmuch  as  surrendering  and  defending 
are  contraries. 

9.  When  the  taking  of  the  assise  is  awarded  bj^ 
default  of  the  Avarrant,  and  the  assise  passes  against 
the  tenant,  then  for  the  first  time  seisin  shall  be 
awarded  to  the  plaintiff ,i  and  the  warrant  shall  be  dis- 
trained to  appear  on  another  day  in  the  following  man- 
ner. The  sheriff  shall  take  into  our  hand  of  the  lands 
oi  the  warrant  as  much  as  the  value  of  the  land 
demanded,  and  he  shall  be  summoned,  as  will  be  men- 
tioned in  the  plea  of  right.^  For  warranty  in  one 
sense  signifies  the  defending  of  the  tenant  in  his  seisin, 
and  in  another  sense  it  signifies  that  if  he  does  not 
defend  him  after  being  properly  summoned,  the 
warrant  is  bound  to  exchange,  and  to  make  him  satis- 
faction to  the  value.  And  in  this  manner  let  him  be 
distrained,  if  he  has  land  in  the  same  county. 

10.  If  the  land  lost  and  tlie  land  whereout  exchange 
is  to  be  made  are  in  diverse  counties,  first  let  the 
tenant's  land  be  extended  ;  and  when  our  Justices  shall 
be  certified  of  the  value,  let  the  sheriff  in  w-hose  baili- 
wick the  warrant  has  land  be  commanded  by  writ  of 
judgment  to  take  into  our  hand  to  the  value  according 

1  Tliis  statement  about  seisin  being  awarded  at  this  stage  of  the 
proceedings  is  not  found  in  the  corresponding  place  of  Bi'acton 
or  Fleta,  and  appears  inconsistent  with  s.  11.  See  also  s.  23,  24. 
Perhaps  we  should  read,  garde  la  seisine  al  teuaunt,  the  tenant's 
possession  being  undisturbed. 

2  See  note  above,  s.  2. 


II,  *19S.]  OF  WAERANTIES.  415 

to  the  extent,  and  let  the  warrant  be  summoned  to  be 
before  them  on  another  day.  *And  if  several  warrants 
are  to  be  thus  distrained,  having  their  lands  in  diverse 
counties,  the  sheriffs  shall  be  commanded  that  each 
of  them  take  into  our  hand  proportionally  much  as  each 
ouirht  to  warrant  accordinti:  to  the  valuation  of  the 
land  of  the  tenant. 

11.  The  reason  why  the  plaintiff  shall  not  recover 
his  demand  immediately  after  the  default  of  the  war- 
rant, and  after  the  assise  passed  in  his  favour,  is  this, 
because  the  warrant  may  perhaps  excuse  himself  for 
the  default  by  alleging  some  hindrance  ;  by  which  ex- 
cuse the  proceedings  may  be  annulled  as  far  back  as 
the  summons,  as  in  a  plea  of  right;  for  it  cannot  be 
properly  adjudged  a  default  so  long  as  it  may  be  de- 
fended by  law  ;  and  it  would  be  ill,  if  the  warrant 
should  lose  his  answer  to  the  demandant,  and  give  the 
tenant  his  exchange  when  he  had  a  good  defence.  But 
if  the  warrant  does  not  come  into  court,  or  if  becomes 
and  cannot  excuse  himself  for  the  default,  then  and 
not  before  let  the  assise  be  taken  by  the  default  of  the 
warrant ;  and  if  it  be  found  that  the  plaintiff  has  right  in 
his  demand,  let  it  be  awarded  that  the  plaintiff  recover 

^  This  statement  is  difficult  to  reconcile  with  what  is  said  be- 
fore in  s.  7,  where  the  assise  is  directed  to  be  taken  immediately 
upon  the  first  default  of  the  vouchee.  (See  also  s.  8,  12.)  The 
same  apparent  inconsistency  is  found  in  the  parallel  passages  of 
Bracton  and  Fleta.  Perhaps  we  should  understand  here,  that 
the  assise  taken  in  the  absence  of  the  warrant  should  not  be 
treated  as  taken  by  his  default,  so  as  to  be  binding  upon  him, 
until  he  had  had  an  opportunity  of  clearing  his  default. 


416  BIUTTOX.  [II,  n98  h 

his  demand  against  the  tenant,  and  that  the  tenant 
recover  to  the  value  of  the  land  of  the  warrant,  and 
the  warrant  remain  in  our  mercy.  And  if  the  plaintiff 
has  no  right,  let  it  be  adjudged  against  him,  as  before 
is  said. 

12.  And  because  it  would  be  wrong  for  the  tenant 
to  recover  against  the  warrant  by  his  default  to  the 
value  of  the  *land  demanded,  and  at  the  same  time  to 
hold  his  own  land  in  peace,  supposing  the  assise  to  de- 
clare against  the  plaintiff,  therefore  we  will  that 
the  assise  be  taken  before  any  plea  is  commenced 
asrainst  the  warrant.  And  if  the  warrant,  whose  land 
is  taken  into  our  hand,  does  not  appear  on  the  da}'  for 
which  he  is  a  second  time  summoned,  and  the  assise, 
being  sworn  and  lawfully  charged,  has  passed  for  the 
plaintiff,  let  judgment  then  be  given  against  the  war. 
rant,  as  is  before  more  fully  set  forth. 

13.  If  the  warrant  comes  into  court,  and  says  by 
way  of  counter-plea  to  the  warranty,  that  he  ought 
not,  neither  is  able  to  Avarrant,  by  reason  that  is  the  de- 
fending of  the  tenant  in  his  seisin,  nevertheless,  as  war- 
ranty in  another  sense  signifies  the  giving  to  the  tenant 
an  equivalent  exchange,  if  he  has  lost  his  land  by  default 
of  the  warrant,  we  will  that  the  plaintiff  recover  his 
exchanges.  And  yet  if  he  can  defend  himself  from 
the  liability  to  make  satisfaction  to  the  value,  it  shall 
be  awarded  by  our  Justices  that  he  go  quit  without 
day. 

14.  If  he  enter  into  warranty  and  vouch  another  to 
warrant,  let  the  second  warrant  be  summoned  against 


li,  *199.]  OF  WARRANTIES.  417 

<iiiother  day  ;  at  which  if  he  makes  default,  let  there 
be  taken  into  our  hands  of  Ids  land  to  the  value  of  the 
land  demanded,  and  let  him  be  summoned  against  an- 
other day  ;  at  which  day  if  he  does  not  appear,  or  if 
he  appears  and  cannot  clear  his  default,  the  judgment 
shall  be  by  process  of  the  lesser  Cape^  as  shall  be  more 
fully  and  plainly  said  in  treating  of  the  plea  of  riglit.^ 

*15.  If  the  second  vouchee  comes  into  court  and 
counterpleads  the  warranty,  and  says  that  he  is  not 
bound  to  warrant  because  the  other  holds  nothing  of 
him,  nor  does  any  service  to  him,  nor  ever  did  homage 
to  him,  or  if  he  says  that  he  is  not  now  bound  to  war- 
ranty, because,  although  he  were  bound  thereto,  yet 
the  vouchor  has  made  default  to  him,  and  has  lost  his 
iud  by  such  default,  which  was  prejudicial  to  him, 
inasmuch  as  where  he  might  have  answered  to  the  assise 
if  he  had  appeared  at  the  day,  he  by  his  default  lost 
all  his  defences  and  exceptions,  which  loss  he  may  im- 
pute to  his  own  negligence,  and  if  he  thereof  demands 
judgment,  we  will  that  judgment  be  given  against  the 
vouchor.  So  likewise,  if  a  third  vouchee  gives  the 
same  answer. 

16.  Hence  it  plainly  appears,  that  when  the  war- 
rant makes  default  the  first  day,  whereupon  the  assise 
is  adjudged  to  be  taken,  but  through  some  accident 
the  recognisance  of  the  assise  is  delayed  until  another 
day,  and  the  warrant  comes  at  that  day,  and  before 
the  assise  is  taken,  is  ready  to  warrant,  he  may  be  ad- 

1  See  note  ante.  s.  3.     The  practice  referred  to  is  described  in 

Bracton  384  ;  Fleta  411,  c.  25. 
27 


418  BRITTON.  [II,  *199  1>. 

mitted  thereto,  yet  not  so  as  to  allege  any  reason  for 
staying  the  assise,  or  to  defeiul  the  tenant  in  his  seisin, 
but  in  order  to  make  the  exclianges  if  the  tenant  should 
lose  by  the  assise, — and  much  more  after  the  recogni- 
sance of  the  assise, — and  that  a  voucliee  in  that  position 
will  not  be  assisted  by  vouching  another  warrant, 

*17.  If  any  warrant,  after  he  has  vouched  another, 
makes  default  in  court,  and  the  plaintiff  and  tenant 
are  in  court,  let  the  recognisance  of  the  assise  be 
immediately  taken,  whether  the  second  warrant  a])pears 
or  not ;  and  let  the  same  course  be  taken,  where  the 
tenant  makes  default,  although  the  warrant  is  present. 
For  although  the  tenant  or  warrant  might  have  some 
reason  to  allege  for  hindering  the  assise,  yet  the  war- 
rant shall  not  be  therefore  quit  of  the  warranty^.  For 
the  assise  shall  not  be  stayed  for  anything  the  tenant 
can  say,  forasmuch  as  he  has  put  his  whole  defence  in 
the  mouth  of  the  warrant,  and  cannot  resume  it  at  his 

1  I  think  there  is  some  confusion  here,  arising  from  the  com- 
piler having  followed  Fleta's  abridgment  of  Bracton,  in  which 
the  sense  of  the  latter  is  not  truly  represented.  Tlie  reason  given 
by  Bracton  for  excluding  the  warrant  from  taking  exceptions  to 
the  assise  in  the  absence  of  his  vouchor  is  that  by  the  default  of 
the  latter  he  is  quit  of  the  warranty.  Bracton  afterwards  sup- 
poses another  case,  in  which  the  vouchee  has  appeared  and 
denied  his  liability  to  warranty  ;  then,  he  says,  neither  the 
tenant  nor  the  vouchee  are  in  a  position  to  raise  any  objection 
to  the  taking  of  the  assise,  for  tlie  same  reasons  as  are  stated  by 
Britton  in  the  next  sentence.  Brae.  260 ;  Fie.  284  (§  9).  As  to 
the  relation  between  Fleta  and  Britton,  see  the  Editor's  Intro- 
duction. 


ir,  *200.]  OF  WARRANTIES.  41^ 

pleasure ;  and  the  warrant  Las  nothing  to  do  but  to 
defend  himself  as  to  the  warranty. 

18.  If  the  warrant  makes  no  default  and  enters  into 
warranty,  then  he  is  allowed  to  answer  and  allege 
against  the  assise  any  reason  why  it  ought  not  to  pass, 
since  all  the  exceptions  and  defences  are  allowed  him 
which  would  have  been  allowable  to  the  tenant, 
inasmuch  as  by  his  warranty  he  is  put  in  the  place  of 
tenant.  Or  the  first  warrant  may  vouch  a  second,  and 
he  another,  and  so  of  several. 

19.  When  several  are  thus  vouched,  and  the  last 
cannot  defend  the  tenant,  or  if  the  assise  is  taken  by 
default  of  any  w^arrant,  and  the  last  warrant  cannot 
defend  himself  from  liability  to  exchange,  let  it  be 
awarded  that  the  vouchor  have  of  the  land  of  his 
*vvarrant  to  the  value,  and  so  from  vouchor  to  vouchor 
until  the  plaintiff  recover  his  demand  against  the 
tenant,  and  he  in  value  against  his  warrant,  and  the 
last  warrant  shall  remain  in  our  mercy. 

20.  If  one  or  more  of  the  warrants  are  under  age, 
the  plea  shall  stand  over  without  day  until  their  age. 
Where  of  several  demandants  in  common  one  dies 
before  the  assise  is  taken,  the  writ  does  not  thereby 
a"bate.  Neither  shall  it  abate  if  one  die  out  of  several 
tenants  in  common.  But  if  the  inheritance  has  been 
divided  between  parceners  who  before  held  in  common' 
and  one  of  the  parceners  die,  the  assise  shall  abate  on 
account  of  the  writ  being  bad.  And  if  husband  and 
Avife  are  impleadc'd  of  the  right  of  the  wife,  and  the 
husband  dies  before  the  assise  is  taken,  neither  the 


420  BKITTON.  [II,  *200  b, 

assise  nor  the  writ  shall  abate;  but  otherwise  in  the 
reverse  case. 

21.  If  the  plaintiff  or  the  tenant  or  both  die  before 
the  assise,  the  assise  shall  fail  for  want  of  a  foundation. 
And  if  any  warrant  dies  after  he  is  vouched,  but  before 
he  has  warranted,  neither  the  assise  nor  the  w^rit 
thereby  abates,  but  the  tenant  must  begin  again  to 
vouch  his  heir.  But  if  he  dies  after  he  has  warranted, 
the  writ  shall  abate  for  want  of  a  foundation,  as  the 
vouchee  by  his  warranty  lias  made  himself,  as  it  were, 
principal  tenant,  and  taken  upon  himself  the  conduct 
of  the  principal  plea. 

*22.  If  any  tenant  or  warrant  shall  say  by  wa}'  of 
answer,  that  he  cannot  answer  Avithont  us,  and  there- 
upon puts  forward  a  charter  of  us  or  some  of  our 
j)redecessors,  the  assise  nevertheless  shall  not  be  staved. 
But  if  it  passes  for  the  plaintiff,  let  judgment  be 
deferred  until  the  next  session,  in  case  by  the  charter 
we  may  be  bound  to  warranty  b\'  virtue  of  some  special 
words,  although  the  clause  of  warranty  may  not  be 
therein  expressed,  and  in  the  meantime  let  our  Justices 
be  consulted  b}'  us  upon  the  judgment.  But  if  it  be  a 
charter  of  confirmation  of  king  Canute,  or  of  any 
other  who  Avas  not  our  ancestor,  or  if  the  charter 
express  that  we  have  granted  as  much  as  was  in  us 
saving  the  rights  of  all  other  parties,  in  that  and  the 
like  cases  Ave  will  not  have  judgment  delayed. 

23.  If  it  shall  happen  that  some  great  ^  dispute  or 

1  It  would  seem  fioui  iliis,  that  when  the  warrant  appeared. 


II,  *201.]  OF  WARRANTIES.  421 

difficult  question  arises  in  a  plea  of  warranty,  by  the 
discussion  of  which  the  assise  is  like  to  be  delayed  for 
a  day  or  more,  in  such  case  there  will  be  no  harm  in 
taking  the  assise,  by  the  recognisance  whereof  it  may 
be  ascertained,  whether  there  be  any  need  of  continuing 
the  plea  of  warranty  or  not ;  for  if  the  assise  passes 
against  the  plaintiff,  there  will  be  no  need  of  deter- 
mining the  plea  of  warranty. 

24.  If  the  3'ounger  brother  has  entered  into  the 
inheritance  of  his  father,  and  during  the  time  of  his 
seisin  has  enfeoffed  a  stranger,  against  whom  the  elder 
^brother  brings  an  assise  of  mortdancester,  and  the 
tenant  vouches  to  warrant  the  younger  brother  his 
feoffor,  and  the  latter  appears  to  warrant,  and  says, 
that  assise  ought  not  to  be  between  him  and  his  elder 
brother,  inasmuch  as  he  claims  to  hold  the  tenement 
by  the  same  descent,  the  assise  shall  not  be  thereby 
stayed  ;  for,  although  the  younger  brother  is  bound  to 
defend  the  tenant  by  his  warranty,  yet  he  is  not  very 
tenant,  for  the  tenant  shall  never  part  with  his  seisin 
pending  the  plea  of  warranty  ;  but  when  the  warrant 
can  no  longer  defend  him  in  his  seisin,  and  judgment 
is  given  against  the  warrant,  then  and  not  before  he 
shall  be  ousted  by  judgment.  For  if  the  assise  between 
these  brothers  were  to  fail  by  reason  of  the  exception 
of  the  same  descent,  then  a  right  of  action  ought  to 
arise  in  favour  of  the  elder  to  demand  the  same  tene- 
ments by  writ  of  right,  which  could  not  be  unless  the 

the  Justices  were  accustomed,  in  a  simple  case,  to  go  into  tlie 
question  of  warranty  before  deciding  tlie  original  plea. 


422  BRITTON.  [II,  *201  K 

younger  brother  was  actual  tenant ;  and  if  he  be 
required  to  bring  the  writ  of  right  against  tenant,  then 
it  will  be  lawful  for  the  tenant  to  defend  the  right  of 
the  elder  brother  either  by  battle  or  by  great  assise. 
Therefore  to  avoid  this  great  inconvenience,  we  will 
not  that  this  exception  be  allowed  in  any  possessory 
writ  unless  between  the  demandant  and  the  actual 
tenant. 

*25.  If  one  enfeoff  another  of  any  tenement,  and  the 
feoffee  makes  an  intrusion  or  other  encroachment 
upon  a  third  person,  who  brings  an  assise  of  mort- 
dancester  against  the  feoffee, — as  suppose  John  enfeoffs 
Peter,  and  Peter  effeoffs  Robert  of  the  same  tene- 
ment, after  whose  death  Peter  enters  into  the  tenement 
as  chief  lord,  and  the  heir  of  Robert  brings  an  assise 
against  Peter ;  if  Peter  thereupon  wishes  to  vouch 
John  to  warrant,  and  John  can  aver  that  Peter  did 
not  enter  into  the  tenement  by  the  act  of  John,  but 
by  his  own  intrusion,  in  such  case  John,  or  any  one 
in  like  position,  shall  not  be  bound  to  warrant ;  but 
in  such  circumstances  every  one  shall  answer  for  his 
personal  act. 

26.  If  an  assise  of  Mortdancester  is  to  be  brought 
for  a  tenement  held  for  a  term  of  years,  and  the  farmer 
only  is  named  tenant  in  the  writ,  the  term  being  for 
ten  or  twelve  years,  or  more  or  less,  the  farmer  may 
say  upon  the  trial,  that  he  claims  nothing  in  the 
tenement  but  a  term  of  years  under  the  lease  of  such 
an  one;  and  if  it  be  so,  the  writ  shall  fail.  And  if 
the  lessor  alone   is   named   as  tenant,  the    writ  shall 


ir,  *202.]  OF  WARRANTIES.  423 

likewise  fail,  so  that  the  assise  may  not  pass  to  the 
prejudice  of  the  farmer,  who  has  as  much  right  to  his 
term  as  the  lessor  to  the  freehold.  But  if  both  are 
named  in  the  writ,  the  writ  shall  stand  ;  and  the 
farmer  shall  be  present  at  the  day,  and  vouch  his 
lessor  to  warrant  his  term,  if  he  thinks  fit  to  do  so. 

*27.  Nevertheless,  in  some  cases  the  farmer  only 
needs  to  be  named  in  the  writ  as  where  a  lord  has 
sold  the  wardship  of  any  lands  for  a  certain  term  of 
years,  before  which  term  the  heir  attains  his  full  age 
and  brings  an  assise  against  the  farmer,  if  the  tenant 
vouches  the  lord  to  warrant  by  virtue  of  some  deed  of 
■covenant,  which  witnesses  that  the  lord  is  bound  to 
warranty  until  a  certain  term  extending  beyond  the 
majority  of  the  right  heir,  we  will  that  such  cases  be 
favorably  viewed  in  relation  to  the  heirs  plaintiffs,  so 
that  they  may  not  be  delayed  of  their  right  of  in- 
heritance by  such  vouchers ;  and  the  farmers  shall 
have  their  recovery  against  their  warrants  by  writ 
of  covenant. 

28.  If  the  parties  present  themselves  in  court,  but  it 
is  necessary  to  delay  the  day  by  the  default  of  the 
jurors,  let  the  parties  be  adjourned  to  their  said  day 
without  further  essoin,  as  is  ordained  in  our  statutes. 
At  which  day  if  the  assise  passes,  whether  as  an  assise 
or  as  a  jury,  for  the  plaintiff  in  the  absence  of  the 
tenant,  let  the  judgment  be  delayed  until  another  day, 
and  the  tenant  be  summoned  to  come  upon  such  day 
to  hear  his  judgment ;  at  which  day,  whether  he  come 
or  not,  judgment  shall  be  given  for  the  plaintiff,  for 


424  BRITTON.  [II,  *202  I. 

the  default  of  the  tenant  after  appearance.  *But  if  it 
has  been  agreed  between  the  parties  that  the  assise 
be  taken  and  judgment  given  the  first  day,  then, 
whether  the  tenant  come  or  not,  the  agreement  between 
the  parties  shall  take  effect. 


CHAPTEE  XII. 

Exception  of  ^saiiie  Descent^ 

1.  To  the  points  of  the  writ  the  tenant  may  answer 
several  ways  ;  for  as  to  that  which  is  first  contained  in 
the  Avrit,  namely,  whether  such  ancestor  was  seised, 
he  may  plead,  that  as  this  ancestor  was  the  plaintiff's 
father  or  other  ancestor  by  whose  seisin  he  claims  the 
inheritance,  so  was  he  likewise  ancestor  to  the  tenant, 
and  by  reason  of  the  death  of  such  ancestor  he  holds 
himself  in  the  inheritance  as  next  heir ;  and  if  he  de- 
mands judgment  whether  the  assise  ought  to  take 
place  between  such  privies  in  blood  claiming  by  the 
same  descent,  in  such  case  we  will  that  the  tenant  go 
without  day,  and  the  plaintiff  take  nothing  by  his  writ 
for  the  reasons  after  mentioned,  but  remain  in  our 
mercy  for  his  false  plaint.  And  if  he  thinks  proper, 
he  may  proceed  by  writ  of  right  to  try  the  proximity 
of  blood. 

2.  Nevertheless  in  some  cases  the  plaintiff  may 
have  a  valid  replication,  as  where  a  plaintiff  claims  the 
tenement  by  the  feoffment  of  a  common  ancestor  of 
himself  and  the  tenant,  and  thereof  produces  charters 


II,  *203.]  '  SAME  descent;  425 

*or  tenders  averment,  and  says  that  he  claims  nothino- 
by  descent.  But  the  tenant  may  answer  by  way  of 
triplication,  that  the  same  feoffment  ought  not  to  prej- 
udice him,  because  the  donor  never  altered  his  estate, 
and  the  plaintiff  was  never  in  seisin,  but  the  donor  all 
along  continued  in  seisin  and  died  seised  ;  and  accord- 
ing as  he  can  verify  this,  so  let  judgment  be  given. 

3.  Nevertheless  between  two  privies  in  blood, 
brothers  or  cousins  or  other  privies,  this  assise  may 
lie,  as  also  the  writ  of  Cosinage  and  of  A  el,  if  it  has 
been  customarily  used,^  Avhere  the  right  heir  is  plain- 
tiff immediately  after  the  death  of  their  common  an- 
cestor, before  tlie  tenants  can  claim  title  of  freehold  by 
long  and  peaceable  seisin.  The  time  allowed  must  be 
determined  by  considering  whether  the  right  heir  de- 
manded his  inheritance  immediately  after  he  knew  of 
it,  or  could  know  of  it,  according  as  he  was  far  off  or 
near,  on  this  side  or  beyond  the  seas,  in  prison  or  out, 
or  according  as  he  shall  have  been  negligent  in  suffer- 
ing the  tenant  to  sleep  in  his  seisin. 

4.  If  one  parcener  demand  against  another  by  this 
assise,  as  where  a  sister  demands  her  share  against  her 
sister,  the  writ  and  assise  shall  fail ;  and  the  writ  d<' 
rationdbili  parte  lies.  Where  the  tenant  says  that  the 
])laintiff  had  a  sister  who  had  issue  children,  who  are 
alive,  and  who  would  have  as  much  right  to  demand 
the  inheritance  as  she,  if  this  be  verified,  the  writ  shall 
fail,  and  the  assise  be  stayed,  whether  those  children 

^The  statement  here  made  is  not  confirmed  by  anything  in 
Bracton  or  Fleta. 


42G  BRITTON.  [II,  *204. 

were  begotten  in  matrimony  or  not.  And  as  this 
assise  does  not  lie  between  parceners  and  colieirs,  so 
neither  does  it  take  phice  between  parceners  who  hold 
in  common  or  in  severalty  by  reason  of  the  land  which  is 
in  itself  partible  ;  but  only  the  writ  de  rationabili  parte. 
And  as  it  lies  not  between  privies  of  blood  being  legit- 
imate, so  does  it  not  lie  between  a  bastard  brother,  ten- 
ant, and  a  legitimate  brother,  plaintiff, — nor  any  writ 
except  the  writ  of  right,  whereby  the  proximity  and 
right  of  blood  is  tried  and  determined. 


CHAPTER  XIII. 
Exception  upon  the  word  '  seised.^ 

1.  With  respect  to  the  clause  expressed  in  the  writ, 
*  died  seised,'  many  exceptions  may  arise.  For  one 
may  die  seised  in  several  ways,  as  by  bodily  presence, 
and  also  by  intention,  although  not  present  in  person. 
And  in  like  manner  may  seisin  be  acquired.  A  person 
may  also  retain  seisin  by  bodily  presence,  ^although  he 
has  no  intention  to  retain  it,  as  happens  with  those 
who  make  a  gift  and  then  die  seised,  before  the  pur- 
chasers have  had  complete  seisin.  And  a  man  may  die 
seised  by  intention,  as  is  the  case  with  those  who  go  on 
a  pilgrimage  leaving  no  one  in  their  tenements,  and 
die  on  their  way. 

2.  A  person  ma}'^  die  seised  by  bailiff,  attorney,  or 
guardian,  as  well  as  if  he  died  seised  in  his  own  person. 
Thus,  where  a  guardian  in  the  name  of  an  infant  under 


II,*204<^.]     EXCErXION  OF  'SEISED.'  427 

age,  or  any  other  procurator  or  attorney  in  the  name 
of  another  receives  seisin  of  any  tenement,  if  he  in 
whose  name  the  seisin  is  taken  die  so  seised,  we  are 
content  that  such  persons  be  deemed  to  have  died 
seised,  although  they  do  not  come  to  be  seised  in  their 
own  persons,  and  that  their  heirs  may  demand  such 
seisin  by  this  assise  on  their  fathers'  deaths, 

3.  Again,  several  persons  may  die  seised  of  the 
same  tenement,  which  they  have  held  as  of  fee  by 
divers  feoffments.  And  when  several  assises  have 
been  brought  by  thera,^  for  it  the  assise  brought  for  the 
death  of  the  person  last  seised  must  be  first  deter- 
mined, and  so  backwards  from  seisin  to  seisin,  until  the 
right  of  possession  is  united  by  judgment  with  the 
right  of  property. 

4.  Where  any  one  is  enfeoffed  to  him  and  his  heirs 
by  him  begotten,  and  if  he  have  no  issue  or  if  his  issue 
die,  then  over  to  others,  if  the  purchaser  dies  having 
issue,  his  child  may  proceed  by  this  assise.  *But  if  he 
has  no  issue,  or  if  tlie  issue  is  dead,  then  the  right  de- 
scends to  the  others  named  in  the  feoffment ;  in  whose 
persons  however  no  recovery  lies  by  this  assise,  but  by 
writ  of  formedon. 

1  That  is,  apparently  by  the  heirs  of  tlie  persons  so  dying  seised 
(cf.  Brae.  262  b).  The  case  supposed  is  somewhat  obscure,  but 
appears  to  be  that  of  several  successive  abatements.  Upon  the 
death  of  A  seised  in  the  fee,  B  a  stranger  enters,  and  enfeoffs  C 
in  fee.  C  dies  seised,  and  D  a  stranger  enters  and  enfeoffs  E, 
who  dies  seised.  F  a  stranger  enters.  Tlie  respective  heirs  of 
E,  C,  and  A  bring  several  assises  of  the  deaths  of  their  respective 
ancestors.     The  assise  of  the  death  of  E  is  taken  first. 


428  BRITTON.  [II,  *204  h. 

5.  A  man  also  may  make  such  a  feoffment  that  his 
heirs  cannot  be  aided  by  this  assise.  Thus,  where  one 
has  enfeoffed  another  for  the  life  of  the  feoffor,  if  the 
purchaser  survive  the  feoffor  and  retain  the  seisin,  the 
heirs  of  the  feoffor  shall  not  avail  themselves  of  this 
assise,  but  of  a  writ  of  entry  ad  terininuin  qui prceteriit. 
And  if  any  one  make  purchase  of  a  tenement  for  his 
life  only,  the  feoffor  shall  have  his  recovery  after  the 
purchaser's  decease,  if  he  be  deforced,  by  the  same 
writ  of  entry.  If  any  one  be  enfeoffed  to  him  and  his 
heirs  so  long  as  the  feoffor  shall  live,  in  such  case  this 
assise  will  lie  in  favour  of  the  heirs  of  the  purchaser 
after  their  father's  death  during  the  life  of  the  feoffor ;  ^ 
and  the  heirs  of  the  feoffor  after  their  father's  death 
shall  have  their  recovery  by  writ  of  entry,  as  afore- 
said. 

6.  The  tenant  may  traverse,  and  tender  averment  by 
the  assise,  that  the  ancestor  did  not  ever  die  seised,  or 
that  if  he  died  seised,  he  was  seised  not  in  his  own 
right  but  in  the  name  of  another,  or  for  a  term  without 
having  fee  or  freehold.  And  if  the  plaintiff  say  that 
he  was  seised  by  virtue  of  some  feoffment,  to  this  it 
may  be  answered  by  triplication,  as  hath  been  said 
above. 

1  Compare  below,  c.  15,  s.  3,  and  note  there. 


11,  *205.]    EXCEPTION  OF  'LAST  SEISED.'    429 


*CHAPTER  XIY. 

Exception  upon  the  words  ''last  seised.^ 

1.  The  tenant  may  urge  as  another  exception,  that 
the  plaintiff  wrongfully  demands  by  this  assise  as  upon 
the  death  of  his  ancestor ;  inasmuch  as  the  plaintiff 
himself,  or  another,  was  in  seisin  since  the  death  of 
the  same  ancestor  by  Avhose  seisin  he  demands.  For 
whereafter  the  heir  is  of  full  age  and  has  had' his 
seisin  upon  the  death  of  his  ancestor,  he  aliens  his 
inheritance  and  sells  it  in  fee,  if  he  could  recover  it 
from  the  purchaser  by  demanding  it  in  respect  of  the 
seisin  of  his  ancestor,  the  feoffment  would  be  invalidated 
and  ineffectual,  and  this  would  be  greatly  inconvenient. 

2.  It  is  necessary  therefore  to  observe  what  seisin 
thus  had  after  the  death  of  an  ancestor  excludes  the 
assise,  and  what  does  not.  For  the  seisin  of  the  right 
heir  at  a  time  when  the  inheritance  was  vacant  after 
his  ancestor's  death,  of  whatever  age  the  heir  may  be, 
shall  always  bar  him  from  recovering  by  this  assise, 
because  then  the  assise  of  Novel  Disseisin  lies.  But  if 
he  is  not  in  a  position  to  aver  seisin  in  that  assise,  then 
the  assise  of  Mortdancester  is  in  place.  But  if  an  heir 
has  had  a  wrongful  seisin  from  which  he  has  been 
])resently  ejected,  such  seisin  bars  not  this  assise,  so 
that  this  exception  is  not  allowable,  unless  the  tenant 


430  BRITTON.  [II,  *205  b. 

say  thut  another  died  more  lately  seised  as  right  heir 
of  the  ancestor  whose  seisin  is  demanded,  and  whose 
heir  the  plaintiff  is.^  And  where  two  parceners, 
coheirs,  bring  this  assise  against  a  stranger  *upon  the 
death  of  their  ancestor,  if  the  tenant  say  that  one  of 
the  parceners  was  since  seised,  the  assise  shall  not  bo 
stayed  if  this  seisin  took  none  effect. 

1  The  latter  part  of  the  above  sentence  is  not  easily  intelligible  ; 
and  the  text  appears  doubtful.  I  do  not  find  in  Bracton  or  Fleta 
anything  which  throws  light  upon  it.  According  to  these  authors, 
the  objection,  founded  upon  a  former  possession  of  the  demand- 
ant, was  held  only  where,  being  of  age,  he  had  been  in  lawful 
seisin  for  so  long  a  time  that  he  might  have  conveyed  away  the 
property.  (Brae.  373,  273  6  ;  Fie.  297.)  Seisin  by  an  infant  was 
immaterial,  since  the  objection  was  founded  only  upon  the 
danger  of  one,  who  had  aliened  the  land,  recovering  it  by  the 
assise  against  his  own  donee.  (Brae.  273  h.)  Where  the  de- 
mandant had  had  a  tortious  seisin  from  which  he  had  been 
ejected,  the  seisin  did  not  furnish  in  itself  a  valid  exception  to 
the  assise  ;  but  another  objection  might  be  taken,  namely,  that 
the  demandant  had  forfeited  his  right  to  the  assise  by  usurping 
the  possession  without  judgment.     (Brae.  273.) 


II,  *206,]  '  I^  HIS  DEMESNE.'  431 


CHAPTER  XV. 

Exception  upon  the  ivords  '  in  his  demesne.'' 

1.  "Whereas  it  is  said  in  the  writ,  '  in  his  demesne,' 
the  tenant  may  aid  himself  by  exceptions.  For  in 
demesne  may  be  held  lands  and  rents,  in  fee  and  for 
term  of  life.  But  demesne  is  properly  a  tenement 
which  is  held  severally  in  fee.  Those  tenements  also 
which  are  held  in  villenage  and  farmed  at  will  from 
day  to  day,  and  commonly  for  terms  of  years,  and  are 
in  the  care  or  custody  of  others,  are  the  demesne  of 
him  of  whom  they  are  so  holden.  The  word  demesne 
is  also  used  in  distinction  from  that  which  is  holden  in 
seignory  or  service,  or  in  common  Avith  others.  For 
then  my  demesnes  are  the  same  as  your  demesnes  ;  so 
that  this  assise  shall  fail  if  it  be  brought  upon  the 
death  of  several  persons  tenants  in  demesne,  inasmuch 
as  its  nature  requires  that  it  should  be  always  brought 
in  respect  of  the  death  of  the  person  last  seised,  as 
hereafter  shall  be  said, 

2.  But  this  assise  does  not  hold  concerning  any 
manner  of  demesne,  save  that  whereof  the  ancestor 
died  seised  *as  of  fee,  whether  it  be  land  or  service. 
For  itlieth  not  concerning  the  seisin  of  any  farmer  for 
term  of  years,  or  of  him  who  hath  held  in  villenage, 


432  BRITTOX.  [II,  *206. 

or  in  ward,  or  in  gage,  or  for  term  of  life,i  or  by 
condition  in  fee,  where  the  heirs  are  excluded  by  the 
form  of  the  feoffment  either  for  a  time  or  for  ever. 

3.  But  if  the  heirs  of  a  creditor  proceed  by  this 
assise,  and  the  deforciant  pleads  against  them  that 
their  ancestor  held  the  tenements  demanded  only  in 
gage,  and  the  heirs  of  the  creditor  reply  that  the  land 
was  engaged  to  their  ancestor,  whose  heirs  they  are, 
until  a  certain  day  upon  this  condition,  that,  if  the 
debtor  did  not  pay  to  their  ancestor  a  sum  of  money  at 
a  certain  day  since  passed,  the  land  should  remain  to 
the  creditor  and  his  heirs  in  fee,  and  if  the  demandants 
can  aver  this  by  writing  or  in  any  other  manner,  then 
this  assise  shall  take  place  concerning  the  seisin  of  the 
creditor,  unless  the  deforciant  can  aver  payment,  or  at 
least  that  the  making  of  such  payment  was  offered  at 
the  day,  and  openly  tendered  at  a  certain  place  in  the 

1  '  A  termor  liolding  to  him  and  his  heirs  and  assigns  for  the 
life  of  the  lessor  shall  recover  by  Disseisin  ;  and  his  heir  if 
ejected  by  the  lessor  or  a  stranger  by  Mortdancestor.  Which 
implies  as  it  were  the  possession  of  a  fee  (qe  sone  tot  en  la  p'on 
come  de  fee),  which  fee  becomes  extinct  in  the  purchaser  by 
virtue  of  the  covenant,  upon  the  death  of  the  lessor,  and  not  be- 
fore. And  it  is  to  be  understood,  that  he  who  hath  only  a  term 
of  years  hath  barely  (escharcement)  a  chattel ;  and  shall  there- 
fore recover  nothing  but  damages  by  the  Justicies  (le  lustice),  or 
by  the  Quare  ejecit.  But  he  who  can  in  any  way  claim  more 
than  a  term  of  years  shall  recover  by  assise  of  Novel  Disseisin. 
For  term  of  years  and  no  more  is  chattel ;  and  more  than  a 
chattel  he  cannot  liave  without  having  a  freehold.'  (Note  in 
MS.  .V.) 


II,  *206  h.]  'IN  HIS  DEMESNE.'  43^ 

presence  of  lawful  people,  in  full  view  and  to  the  full 
iunount  without  any  default.  For  if  a  part  is  paid  or 
tendered,  but  the  whole  is  neither  paid  nor  tendered, 
the  debtor  shall  gain  nothing  by  his  exception.  *And 
the  same  reason  shall  hold,  if  a  breach  has  been  made 
of  one  day  out  of  several,  where  the  payment  was  to 
have  been  made  by  parcels  at  several  times. 

4.  If  the  assise  is  brought  by  the  heirs  of  the  debtor 
iigainst  the  creditor  or  his  heirs,  when  this  condition 
comes  in  question,  and  it  is  found  that  the  money  was 
not  paid  or  tendered  according  to  the  condition,  let 
the  assise  abate  and  let  the  intention  of  the  feoff er  be 
observed.  And  if  the  assise  be  brought  before  the 
ilay  for  fulfilment  of  the  condition,  let  it  be  awarded 
that  the  tenant  go  without  day  and  the  plaintiff  be  in 
mercy  for  his  false  plaint,  because  the  time  for  com- 
plaining is  not  yet  come,  and  the  creditor  or  his  heir 
shall  not  be  obliged  to  receive  his  money  or  part  with 
his  security  before  the  day,  unless  he  is  willing  so 
to  do. 

5.  And  if  the  condition  of  payment  does  not  extend 
to  the  heirs  of  the  debtor,  and  the  debtor  dies  before 
the  day,  the  lands  shall  remain  with  the  creditor 
according  to  the  covenant,  although  the  heir  of  the 
debtor  be  ready  to  pay  the  money  borrowed,  inasmuch 
as  heirs  are  not  named  in  the  covenant.^     And  so  on 

^  In  the  time  of  Littleton,  a  more  liberal  construction  was  put 
upon  a  conditional  clause  of  this  kind,  the  heirs,  though  not 
named,  being  allowed  to  perform  the  condition.  Lit.  Ten,  s.  334 ; 
Co.  Lit.  205  ?J. 


434  BRITTON.  fll,  *20T. 

the  other  hand  we  will  that  the  covenants  shall  be 
observed,  where  no  mention  is  made  of  the  heirs  of  the 
creditor  ;  so  that  if  the  heirs  of  the  debtor  bring  an 
assise  against  the  creditor  or  his  heirs,^  and  the  heirs 
of  the  creditor  plead  to  the  assise  and  say  that  their 
ancestor  died  seised  in  fee,  and  the  heirs  of  the  debtor 
reply  that  he  was  seised  not  purely  in  fee  but  in  gage 
for  a  sum  of  money,  which  they  are  ready  to  pay,  and 
the  deforceors  say,  that  they  cannot  be  admitted 
thereto,  ^because  the  day  of  payment  is  passed,  and  the 
paj'^ment  does  not  extend  to  their  persons,  and  the 
plaintiffs  say,  that  neither  does  the  gage  extend  to  the 
deforceors — if  it  be  found  by  the  writings  of  covenant,, 
which  cannot  be  contradicted,  that  the  land  was 
engaged  in  the  following  form,  that  if  the  debtor  did 
not  pay  the  money  at  the  day  passed  the  land  should 
remain  to  the  creditor  in  fee,  in  such  case  the  plaintiffs- 
shall  take  nothing,  although  it  is  not  specified  in  the 
writings  that  the  land  shall  remain  to  the  heirs  of  the 
creditor,  by  reason  of  the  word  fee,  which  is  equivalent 
thereto. 

6.  And  if  the  plaintiffs  say  that  equity  ought  to 
assist  them,  by  reason  of  the  smallness  of  the  debt,  that 
shall  not  avail  them,  since  every  freeman  may  dispose 
of  his  property  at  his  will  without  doing  an}^  wrong  to 
his  heirs,  except  in  particular  cases,  as  mformedon  or 
in  marriage,  or  when  the  gift  is  to  persons  in  religion 
or  other  prohibited  persons. 

7.  We   will  also  that   the  covenant   be   performed 

1  It  should  be,  '  against  the  heirs  of  the  creditors.' 


II,  *207.]  'AS  OF  FEE.'  435 

between  the  debtor  and  creditor  concerning  land  let  to 
farm  to  the  creditor,  where  the  condition  is,  that  if  the 
debtor  happen  to  die  within  the  term,  the  land  shall 
remain  to  the  creditor  in  fee,  or  for  his  whole  life  ;  or 
if  it  be  covenanted,  that  if  the  creditor  die  Avithin  a 
certain  term,  then  the  tenement  so  engaged  shall 
remain  to  some  third  person,  such  covenant  shall  stand 
good.  And  although  the  heirs  of  the  debtor  have 
some  colour  for  bringing  this  assise  of  the  death  of 
their  ancestor,  inasmuch  as  he  died  in  a  manner  seised 
in  fee,  yet  their  right  must  stand  or  fall  by  the  covenant. 
And  whereas  a  simple  covenant  bars  the  assise  for  a 
time  or  for  ever,  there  is  much  greater  reason  for  its 
being  stayed  in  pursuance  of  a  judgment  of  our,  court. 


CHAPTER   XVI. 

Exception  founded  on  the  words  '  as  of  fee? 

1.  As  to  the  words  contained  in  the  writ,  '  as  of 
fee,'  one  person  may  hold  in  fee  in  respect  of  the  ser- 
vice and  not  in  demesne,  as  the  lord  of  the  fee ;  and 
another  may  hold  in  fee  and  in  demesne  and  not  in 
service,  as  any  free  tenant.  Fee  is  also  whatsoever  any 
person  holds  to  himself  and  his  heirs,  whether  it  be 
land  or  rent  issuing  out  of  land.  And  there  is  a  third 
kind  of  fee,  which  is  a  general  name  for  all  fees,  as  well 
for  a  knight's  fee  as  all  others. 

2.  But  the  fee  specified  in  this  assise  always  signifies 
land  or  rent  which  the  ancestor  held  to  himself  and  his 


436  BRITTOK  [II,  *208. 

heirs,  and  which  he  might  in  his  lifetime  have  sold  in 
fee  *without  doing  a  prejudice  or  wrong  to  any  one. 
And  if  the  assise  be  brought  of  any  other  manner  of 
seisin,  as  of  land  held  for  term  of  life  or  for  term  of 
years,  the  assise  shall  fall.  The  words  in  the  writ,  '  as 
of  fee,*  may  be  understood  in  two  ways,  according  as 
the  word  '  as  '  imports  an  apparent  truth,  as  in  the  case 
of  disseisors  intruders  and  others,  who  withhold  an- 
other's right  and  die  seised  as  of  fee,  or  signifies  the  mere 
truth,  when  persons  who  hold  by  a  good  title,  and 
than  whom  none  has  a  better  right,  die  seised  in  fee. 
In  both  these  cases  we  will  that  this  assise  take  place. 
3.  Again,  the  tenant  may  say,  that  although  the  an- 
cestor died  seised  as  of  fee,  yet  no  part  thereof  could 
descend  to  his  heirs  because'he  was  a  bastard.  And, 
although  no  one  can  be  attained  as  a  bastard  except  in 
his  lifetime  and  in  court  Christian,  yet  if  the  parties  con- 
sent that  it  shall  be  inquired  by  the  assise,  by  way  of 
jury,  whether  the  ancestor  was  a  bastard  or  not,  let  the 
recognisance  be  taken,  and  judgment  be  given  according 
to  the  verdict.  And  if  any  one  will  not  put  himself 
on  the  averment,  then  let  judgment  be  given  against 
him  whether  he  be  tenant  or  plaintiff.  And  let  the 
like  be  done,  in  cases  where  it  is  put  forward  as  an  ex- 
ception, that  the  ancestor  died  a  bastard  without  any 
heir  to  the  tenement,  whereof  he  was  enfeoffed  only  to 
himself  and  to  his  heirs.* 

*  It  is  not  easy  to  see  how  the  case  added  in  this  clause  differs 
from  the  one  first  mentioned.  Tlie  whole  passage  is  paraphrased 
from  Bracton  or  Fleta,  where  the  expressions  are  somewhat  dif- 


II,  *208  J.]  '  AS  OF  FEE.'  437 

4.  Or  the  tenant  may  say  that  he  holds  the  tenements 
demanded  only  as  bailiff,  or  at  will,  or  by  wardship  of 
*some  third  person,  without  wjom  he  cannot  answer  ; 
and  if  this  be  proved,  the  assise  shall  fall.  So,  if  he 
says  that  the  ancestor  did  not  die  seised  of  the  land  in 
demesne,  but  only  of  the  fee. 

5.  Again,  the  tenant  may  grant  that  the  ancestor  of 
the  plaintiff  died  seised  as  of  fee,  but  say  that  never- 
theless he  cannot  take  anything  by  this  assise,  for  that 
the  same  ancestor  let  the  tenement  to  the  tenant  for  a 
term  on  condition  that,  if  the  lessor  died  before  the  end 
of  the  term,  the  termor  should  have  a  freehold  for 
term  of  life,  or  a  fee  and  freehold,  wherefore  that 
which  he  held  before  as  at  farm,  he  holds  now  as  his 
freehold  ;  and  if  such  a  covenant  be  verified,  the  assise 
is  at  an  end.  In  like  manner  it  shall  be  stayed,  where 
the  land  has  been  put  in  gage,  if  the  debtor  has  not 
discharged  it  or  at  least  offered  to  discharge  it  at  the 
day,  according  as  we  have  said  before ;  or  if  he  holds 
the  land  as  a  security  by  judgment  of  our  court. 

6.  Again,  the  tenant  may  say  that  he  has  nothing 
and  claims  nothing  at  this  time  except  in  seigniory,  or 
by  title  of  wardship,  or  to  hold  in  another's  name  by 
the  lease  of  such  an  one,  as  a  farmer,  at  the  will  of  his 

ferent.  The  latter  case  may  possibly  be  that,  where  a  bastard 
enfeoffed  to  himself  and  his  heirs  (without  '  assigns')  gives  to 
another  in  fee,  and  dies  leaving  no  heir,  upon  which  the  lord 
enters.  The  question  however  in  this  case  would  not  arise 
upon  an  assise  of  Mortdancester  of  the  death  of  the  bastard,  as 
seems  to  be  implied  in  the  text.    See  vol.  i.  p.  312. 


438  BRITTOX,  [TI,  ^209. 

lessor,  who  is  not  named  in  the  writ,  and  if  this  be 
proved  or  not  denied,  and  the  jury  testify  that  lie  has 
not  claimed  anything  in  his  own  name,  the  writ  is 
thereby  abatable.  *So,  if  the  tenant  acknowledges 
himself  to  be  the  villain  of  another,  and  thus  to  hold 
in  another's  name. 

7.  If  any  one  demands  by  this  assise-  that  which  a 
widow  holds  in  excess  of  her  right  dower,  the  assise 
shall  fail,  inasmuch  as  she  claims  nothing  but  her 
dower;  and  remedy  shall  be  had  by  writ  of  admeas- 
urement of  dower. 


CHAPTER  XYII. 

Exception  founded  on  the  wm^ds  Hhe  day  whereon  he  died."" 

1.  With  regard  to  the  words  in  the  writ,  '  the  day 
whereon  he  died,'  or  '  the  day  whereon  he  assumed  the> 
religious  habit,'  or  'the day  whereon  he  departed  from 
his  house  on  pilgrimage  and  undertook  the  journey  in 
which  he  died,' — it  is  necessary  to  attend  to  the  fol- 
lowing points.  For  there  is  a  solar  day  and  a  lunar 
day,  according  as  God  divided  the  light  from  the  dark- 
ness, and  these  two  days  make  one  artificial  day,  which 
is  made  up  of  the  day  and  of  the  night  following,  and 
contains  twenty-four  hours,  and  is  divisible  into  four 
parts.  The  first  may  begin  at  nightfall  and  end  at 
midnight,  the  second  may  begin  at  midnight  and  end 
at  daybreak,  the  third  may  begin  at  daybreak  and  end 


II,  *200  5.]        ♦  THE  DAY  HE  DIED.'  439 

iit  noon,  the  fourth  may  begin  at  noon  and  continue 
till  nightfall.  Therefore  whether  any  one  dies  in  the 
night  *or  in  the  day,  he  dies  in  the  artificial  day,  and 
for  this  reason  it  is  said  in  our  writ,  '  the  day  whereon 
he  died,'  and  not  'the  night  whereon  he  died,' 

2.  It  behoves  him  therefore  who  would  recover  his 
inheritance  by  this  assise  not  only  to  aver  that  his  an- 
cestor, of  whose  death  he  has  brought  this  assise,  was 
seised  some  time  of  the  day  on  which  he  died,  but  he 
must  also  shew  that  he  died  seised.  For  these  two 
propositions  may  stand  together,  that  the  ancestor  was 
seised  on  the  day  on  which  he  died,  and  that  he  did 
not  die  seised  ;  since  one  may  be  seised  of  a  tenement 
in  his  demesne  as  of  fee  at  daybreak,  and  j^et  before 
noon  in  the  same  quarter  of  a  day  he  may  give  it  awav, 
and  put  another  in  seisin  thereof  with  a  full  intention 
of  divesting  liimself,  and  the  purchaser  may  take  seisin 
thereof  with  full  intention  to  retain  it,  by  the  union  of 
which  assent  there  accrues  to  the  purchaser  a  freehold 
and  fee  and  demesne  by  the  will  of  the  feoffor,  who 
put  himself  out  of  the  seisin  of  the  whole,  and  has  no 
intention  of  retaining  any  part  of  it.  And  if  the  feof- 
for dies  immediately  in  the  second  quarter,  and  his 
heir  demands  by  this  assise  the  land  aliened,  and  the 
tenant  says  that  the  ancestor  did  not  die  seised  as  in 
the  case  aforesaid,  and  thereof  produces  a  charter  of 
feoffment  which  witnesseth  the  same,  although  the 
plaintiff  say  that  the  grant  of  his  ancestor  ought  not  at- 
all  to  avail  the  purchaser,  inasmuch  as  he  never  took 
esplees  in  full  seisin  before  the  death  of  the  grantor, 


440  BrJTTON.  [II,  *210. 

*yet  the  plaintiff  shall  not  succeed  by  this  assise,  unless 
it  be  found  by  the  assise  that  the  intention  of  the 
donor  was  contrary  to  his  gift,  or  the  plaintiff  can 
prove  that  the  ancestor  was  not  in  good  memory  and 
right  mind  at  the  time  of  the  feoffment. 

3.  For  where  the  ancestor,  if  he  had  lived  and  had 
repented  of  his  gift,  could  not  have  had  his  recovery 
by  assise  of  Novel  Disseisin  at  the  time  that  this  as- 
sise is  brought,  it  would  be  unjust  if  this  assise  should 
lie  in  the  person  of  his  heir.  But  the  ancestor  could 
never  have  recovered  by  assise  of  Novel  Disseisin,  so 
long  as  it  could  have  been  proved  by  recognisance  of 
the  assise  that  of  his  own  accord  he  made  the  gift,  and 
of  his  own  accord  went  out  and  dispossessed  himself, 
and  of  his  own  accord  put  the  tenant  in  seisin.  And 
according  to  this  reasoning  it  would  appear,  and  it  is 
true,  that,  if  the  donor  had  remained  alive  and  re- 
pented of  his  gift,  and  the  next  day  or  the  third  day 
or  soon  after  the  gift  had  ejected  the  purchaser,  the 
purchaser  might  have  recovered  by  assise  of  Novel 
Disseisin  by  reason  of  the  conjunction  of  their  two 
wills,  which  took  place  at  the  transferring  of  the  seisin. 

4.  Hence  it  appears,  antl  so  it  is,  that  two  or  more 
persons  may  on  the  same  day  be  severally  seised  of 
the  same  tenement  in  their  demesne  as  of  fee,  provided 
perhaps,  by  reason  of  the  words  of  the  count  in  the 
plea  of  right,  that  each  can  take  seisin  of  the  homages 

•and  rents  and  lands  to  the  value  of  half  a  mark  or  more. 
Whereof  if  the  donor  dies  on  the  day  of  his  gift,  and 
the  purrhns(M'  nl>:o, — or  I  ho  purcliasors,  supposing  sev- 


II,  *210  h.]      '  THE  DAY  HE  DIED.'  441 

eral  *successive  feoffments  to  have  been  made  the  same 
(lay  from  one  to  the  other, — and  diverse  assises  are 
brought  of  the  same  tenement  by  the  heirs  of  tlie 
donor  and  by  the  heirs  of  the  several  purchasers, 
for  every  such  plaintiff  the  assise  will  lie,  but  the  heir 
of  him  who  died  last  seised  on  the  same  day  shall 
retain  the  tenement  by  judgment. 

5.  The  same  rule  appears  from  the  case  of  him  wlio 
undertakes  a  pilgrimage,  for  he  may  divest  himself  of 
Ids  seisin  and  enfeoff  some  stranger,  and  straightway 
on  the  same  day  begin  his  journey,  and  die  the  same 
day  or  the  next ;  in  which  case,  although  his  heir  can 
aver  by  the  assise  that  his  ancestor  was  seised  on  tlie 
day  that  he  set  out  on  his  journey  towards  his  pil- 
grimage, yet  he  doth  not  thereby  prove  that  his  an- 
cestor left  him  any  seisin  or  any  right,  since  he  neither 
died  seised  corporeally  nor  by  intention.  And  tlie 
same  reason  may  be  assigned  where  a  person  makes  a 
gift  to  another  and  puts  him  in  seisin,  and  the  same 
da}'  assumes  the  religious  habit.  From  all  which  con- 
siderations it  appears  that  this  assise  lies  only  for  those 
whose  ancestors  died  or  are  treated  as  having  died 
seised,  for  the  reasons  aforesaid. 

6.  Again,  the  tenant  may  say  that  the  ancestor  is 
not  yet  dead,  and  if  this  is  verified,  the  assise  shall 
fall. 


442  BRITTOK.  [II,  *211. 


*CHAPTEK  XYIII. 

Exception  founded  on  the  words  '  of  so  much  land  with 
the  appurtenances.'' 

1.  The  writ  also  contains  these  -words,  '  of  so  mucli 
land  with  the  appurtenances  in  such  a  vill ; '  from 
which  words  exceptions  may  arise  in  favour  of  the 
tenant ;  as,  for  an  error  in  the  demand,  if  '  tenement ' 
is  named  instead  of  '  rent,'  or  the  reverse,  or 'rent' 
instead  of  '  customs  and  services,'  or  two  carucates 
of  land  for  one,  or  if  any  one  demands  service, 
when  he  ought  to  demand  annual  rent.  Where- 
fore if  a  tenement  be  demanded  of  him,  who  claims 
nothing  therein,^  or  nothing  but  in  the  name  of 
another,  as  guardian,  farmer,  villain,  or  bailiff,  or  in 
the  name  of  his  wife,  where  such  others  are  not  named, 
in  the  writ,  or  nothing  but  the  seigniory  and  services, 
or  if  service  is  demanded  where  tenement  should  be 
demanded  in  demesne  in  all  or  in  part,  or  if  the  plain- 
tiff says  that  he  demands  that  as  in  demesne  which  the 

1  '  Note,  tliat  when  one  demands  by  Mortdannester  otherwise 
than  as  the  defendant  holds,  the  assise  shall  fall ;  thus,  if  the 
demandant  supposes  in  the  tenant  other  estate  than  he  hath,  as 
*where  he  is  not  "  tenant  in  his  demesne  as  of  fee."  For  one 
ought  to  demand  of  him  that  hath  the  thing  demanded  ;  for  of 
liim  that  hath  nothing,  nothing  can  be  demanded.'  (Note  in 
MS.  N.) 


II,  *211  h:\        '  AFTEK  THE  TEKM.'  ^443 

tenant  holds  in  demesne,  and  that  in  service  which  the 
tenant  holds  in  service,  the  writ  thereby  falls.  For 
in  this  assise  every  one  ought  to  make  his  demand 
agreeably  to  the  tenour  of  the  writ,  and  according  as 
his  ancestor  died  seised. 

2.  And  if  the  plaintiff  cannot  shew  the  jurors  the 
tenement  which  he  demands,  nor  where  he  ought  to 
recover,  the  assise  thereby  falls.  *So,  if  the  tenant 
says  that  he  does  not  hold  all  that  is  demanded,  and 
the  jurors  of  the  assise  say  that  they  do  not  know 
whether  he  holds  the  whole  or  not. 


CHAPTER   XIX. 

Exception  founded    on  the  loords  '  after  the  term.^ 

It  is  also  contained  in  the  writ,  '  whether  the  ances- 
tor died  after  '  a  certain  term  named  in  the  same  writ, 
from  which  an  exception  may  arise  in  favour  of  the 
tenant.  For  if  he  can  prove  that  the  ancestor  did  not 
die  seised  after  such  term  in  his  demesne  as  of  fee,  the 
assise  shall  fall. 


444  BRITTOIM.  [11,  *212. 


CHAPTER  XX. 

Exception  founded  on  the  words  '  Tiext  heir^ 

1.  The  next  article  in  the  writ  is, '  whether  the  plain- 
tiff is  next  heir.'  Who  is  nearer  heir  than  another  has 
been  in  part  mentioned  above,  and  shall  be  more  fully- 
set  forth  in  treating  of  the  writ  of  right.  And  as  to 
the  proximity,  the  tenant  may  answer  that  another  is 
nearer  heir  than  the  plaintiff,  or  he  may  absolutely 
traverse  his  being  the  next  heir,  and  thereupon  de- 
scend to  averment  by  the  assise. 

2.  Or  he  may  say,  supposing  the  land  to  be  partible,, 
that  the  plaintiff  is  not  the  nearest  heir,  there  being 
another  as  near  not  named  in  the  writ ;  and  if  this  ex- 
ception is  proved  or  not  denied,  the  assise  shall  fall.^ 
So  if  an  assise  is  brought  against  one  parcener,  where 
several  parceners  hold  in  common,  *the  writ  is  thereby 
abatable.  And  when  this  assise  is  brought  against 
several  parceners,  or  others  holding  in  common,  and 
one  of  the  tenants  dies,  the  writ  falls. 

3.  Again,  the  tenant  may  say  that  the  plaintiff  can- 
not be  next  heir,  for  that  the  ancestor  of  whose  death 

^  See  the  entry  of  an  assise  16  Edw,  I,  cited  in  Cowel's  Inter- 
preter, s.  V.  Partitione  facienda. 


II,  *212  b.]  '  NEXT  heir;  445 

he  brings  the  assise  did  not  hold  the  tenements  in  his 
own  name,  but  in  the  name  of  such  an  one,  and  was 
his  villain,  which  case  being  proved  or  not  denied,  the 
assise  shall  fall. 

4.  As  to  an  assise  brought  by  one  sister  against 
another  of  a  tenement  descending  from  their  common 
ancestor,  we  will  that  such  an  assise  shall  not  lie,  by 
reason  of  the  parity  of  the  possessory  right  among 
them,  but  the  remedy  shall  be  by  writ  of  partition. 
And  where  two  sisters,  one  of  whom  is  legitimate  and 
the  other  is  a  bastard,  have  brought  this  assise  against 
a  tenant,  although  the  assise  say  that  one  was  born  in 
matrimony  and  the  other  before,  yet  it  does  not  there- 
fore follow  that  the  seisin  shall  not  be  adjudged  to 
both,  saving  to  the  legitimate  her  action  to  recover 
the  bastard's  share  by  writ  of  right  when  she  is  of  age 
to  do  so ;  and  let  the  objection  of  bastardy  be  then  de- 
termined upon  replication.  The  same  rule  also  holds 
among  parceners,  some  of  whom  are  villains  and 
others  free.* 

*5.  Again,  the  tenant  may  admit  that  the  plaintiff  is 
next  heir,  but  still  may  say  that  he  ought  not  as  yet  to 
have  the  seisin,  for  that  the  tenant  holds  it  by  feoff- 
ment of  the  ancestor  for  term  of  life,  or  in  gage,  or 
upon  condition,  or  for  a  certain  time  by  judgment  of 
our  court,  or  by  the  law  of  England  for  term  of  life. 

1  The  case  in  which  this  point  would  arise  is  explained  by 
Bracton,  by  reference  to  a  custom  of  Cornwall :  according  to 
which,  if  a  freeman  married  a  neif,  half  the  children  were  free, 
and  half  were  villains. 


446  BRITTON.  [II,  *2LS. 

But  for  this  he  must  prove  that  he  had  icsue,  which 
was  heard  to  cry,  and  which  had  human  form,  and 
not  that  of  a  monster  and  was  never  attainted  as 
bastard. 

6.  Again,  he  may  say  that  there  is  a  nearer  heir, 
as  where  the  youngest  of  three  brothers  bring  this 
assise  of  the  death  of  his  second  brother,  if  the  tenant 
produces  in  court  any  issue  of  the  eldest  brother,  the 
assise  shall  fall. 

7.  Or  he  may  say,  that  although  the  plaintiff  is 
the  next  heir  to  his  ancestor,  yet  his  ancestor  ex- 
cluded him  by  a  disposition  made  in  his  last  will 
by  testament;  and  if  this  be  verified,  and  the  tene- 
ment be  devisable  by  usage  and  custom  of  the  place, 
as  is  the  case  with  burgage  tenements,  the  assise 
shall  fall. 

8.  Or  the  tenant  may  say,  that  although  the  plain- 
tiff be  right  heir,  yet  he  cannot  have  remedy  by  this 
writ  by  reason  of  an  usage  to  the  contrary,  to  wit, 
that  no  writ  shall  run,  except  the  Avrit  of  right  close 
according  to  the  custom  of  the  manor.  And  if  the 
tenement  is  parcel  of  the  ancient  demesnes  of  our 
Crown,  and  both  the  plaintiff  and  tenant  are  soke- 
men,  or  if  the  plaintiff  being  a  sokeman  has  brought 
this  assise  against  the  *lord  of  the  manor,  the  writ 
shall  thereby  abate,  unless  the  plaintiff  can  shew  how 
by  feoffment  the  tenement  has  been  changed  from 
socage. 

9.  Or  he  may  say,  that  although  the  plaintiff  is 
next  heir,  yet  his  ancestor  did  not  so  die  seised,  but, . 


II,  *213 1.-]  '  NEXT  HEIR'  ,447 

that  the  donor  always  continued  in  seisin  together 
with  him,  and  still  is  seised  ;  and  if  this  be  verified, 
the  assise  shall  be  stayed. 


CHAPTER  XXI. 

Exceptions  founded  on  the  words  '  who  holds  the  land* 

1.  As  to  the  words  in  the  writ,  '  summon  such  an 
one  who  holds  the  aforesaid  land,'  or  '  holds  the  rent 
deforced,' — inquiry  should  be  made  whether  the  ten- 
ant holds  all  according  as  the  ancestor  held  it,  or  only 
part  of  it.  For  the  whole  may  be  of  various  kinds. 
Thus,  where  the  plaintiff  demands  a  manor  with  the 
appurtenances,  or  one  carucate  of  land  with  the 
appurtenances,  or  twenty  librates  of  land  with  the  ap- 
purtenances, the  jurors  according  to  the  demand  must 
particularly  view  what  tenement  and  how  much  the 
plaintiff  demands,  and  whether  the  whole  according 
as  the  ancestor  held  it  or  part  only  ;  and  if  the  whole 
be  demanded,  and  a  part  of  that  whole  not  excepted 
in  the  writ  be  alienated,  the  assise  shall  fall, 

2.  And  if  the  ])laintiff  makes  his  demand  by  parcels, 
then  every  ]>arcel  is  a  separate  whole,  and  therefore  if 
the  tenant  does  not  hold  the  whole  of  any  parcel  the 
writ  shall  fall  as  to  the  whole  of  that  parcel,  and  shall 
hold  good  as  to  the  other  *entire  parcels.  For  though 
there  is  but  one  plaintiff  against  several  tenants,  yet 
several  (although  similar)  actions  shall  accrue,  by 
reason  of  the  plurality  of  parcels  and  of  tenants.     And 


448  BRITTOK.  [II,  *214. 

where  one  parcel  is  demanded  against  one  tenant  by 
several  particulars,  as  one  caracute  of  land  by  several 
virgates,  or  one  virgate  by  several  acres,  if  the  tenant 
does  not  hold  the  whole  according  to  the  demand,  the 
writ  shall  fall,  either  because  the  tenant  never  held 
any  part  of  it,  or  because  he  aliened  part  before  the 
writ  was  obtained,  of  which  alienation  no  notice  is 
taken. 

3.  If  any  alienation  be  made  after  the  obtaining  of 
the  writ,  the  assise  shall  not  be  thereby  stayed,  by 
reason  of  the  presumption  of  fraud  in  the  alienor,  as 
in  such  cases  there  is  a  great  presumption  that  such 
alienations  are  made  to  delay  the  plaintiffs  of  their 
right,  and  to  evade  the  judgments  of  our  court.  But 
if  any  such  alienation  be  made,  and  the  feoffor  die  be- 
fore the  daj'  of  plea,  the  writ  shall  not  abate ;  but  the 
tenant  must  come  and  answer  to  the  assise,  or  vouch 
to  warrant  the  heir  of  the  feoffor.  And  if  the  heir  is 
nnder  age,  yet  the  assise  shall  not  stand  over  to  be 
taken  ;  *for  in  such  cases  we  will  that  the  heir  shall 
answer  of  what  age  soever  he  be,  as  it  is  ordained  in 
our  statutes  that  he  shall  answer  to  the  writ  of  entry 
founded  on  disseisin.  And  if  the  heir  recover,  let  the 
tenant's  right  be  saved  to  recover  his  warranty,  when 
the  heir  shall  be  of  age,  by  resummons  out  of  the  rolls 
of  our  Justices,  wherein  we  will  that  special  mention 
be  made  thereof. 

4.  If  the  tenant  says  that  he  does  not  hold  the 
whole,  then  he  ought  to  declare  who  holds  the  residue. 
For  we  will  that  before  writs  be  abated  for  a  fault  or 


II,  214  h.]     WHO  HOLDS  THE  LAND.  449 

error,  the  tenants  inform  the  plaintiffs  how  they  shall 
purchase  good  writs.  And  if  the  tenant  sets  forth  the 
name  of  him  who  holds  the  residue,  the  ])laintiff  mav 
l)erhaps  answer  thereto,  that  the  writ  ought  not  there- 
by to  abate,  for  the  tenant  himself  held  the  whole  the 
day  that  the  writ  was  purchased. 

5.  Or  the  plaintiff  may  say  that  the  person  who 
holds  such  residue  holds  it  for  a  term  of  years,  or  at 
will,  or  in  villenage,  and  is  the  villain  of  him  who  is 
named  tenant  in  the  writ ;  and  in  such  case  the  writ 
shall  stand.  And  if  the  tenant  says  that  the  person 
who  holds  the  residue  is  his  freeman,  and  holds  such 
residue  of  him  freely,  and  the  plaintiff  is  not  ])repared 
with  suit  of  the  blood  of  the  villain  to  prove  that  he 
is  a  villain,  the  writ  shall  fall ;  and  let  the  plaintiff  ob- 
tain a  good  writ  against  both  the  tenants.  If  the 
tenants  allege  non-tenure,  and  cannot  say  who  holds 
the  residue,  let  them  answer  for  what  they  hold. 

*6.  This  exception  of  non-tenure  lies  properly  in  this 
assise,  together  with  the  other  exceptions  concerning 
the  words  in  the  writ.  For  in  other  writs,  if  it  be  put 
forward  with  effect,  it  is  of  such  force,  that  there  is  no 
room  for  other  exceptions,  but  judgment  must  be  given 
according  as  proof  is  made  of  this  exception.  And 
that  in  different  ways  ;  for  in  writs  of  escheat,  entry, 
formedon,  cosinage,  and  others,  in  which  battle  and  the 
great  assise  do  not  lie,  if  the  verdict  upon  this  excep- 
tion be  given  for  the  tenant,  the  writ  abates,  and  so 
the  exception  is  dilatory, — if  against  the  tenant,  the 
plaintiff  shall  recover,  saving  to  the  tenant  his  action 


450  BRITTON.  [II,  *215. 

in  the  rigbt ;  but  if  it  be  put  forward  sucessfuUy  in  a 
plea  of  right,  it  will  be  peremptory  against  whomso- 
ever it  passes. 

7.  If  the  plaintiff  makes  his  plaint  and  demands  a 
tenement  in  demesne,  and  the  writ  says,  '  whereof  the 
tenant  deforceth  him,'  the  writ  is  thereby  abatable 
for  fault  in  such  writ,  for  it  ought  to  have  said, 
'  which  the  tenant  holds,'  And  if  he  does  not  demand 
land  or  tenement  in  demesne,  but  rent  and  service,  and 
the  writ  says,  '  which  the  tenant  holds,'  the  writ,  if  it 
be  challenged,  is  in  that  respect  defective  and  abatable, 
for  it  ought  to  have  been,  '  who  deforceth  the  afore- 
said rent.'  *And  if  there  is  error  in  the  writ  as  to  the 
name  of  the  vill,  as  to  where  a  hamlet  is  named,  where 
it  should  have  been  a  vill,  or  any  other  kind  of  error, 
the  writ  is  thereby  abatable. 


CHAPTER  XXIL 

Exceptions  of  felony  and  bastardy,  and  other  exceptions 
to  the  assise. 

1.  Again,  the  tenant  may  say  that  assise  ought  not 
to  be,  for  that  the  ancestor  whose  seisin  he  demands 
was  a  felon,  so  that  no  right  or  seisin  could  descend 
through  him  to  any  other,  but  to  the  chief  lord  ^  as  an 
escheat.      But  this  is  not  sufficient,  unless  it  be  said 

1  The  expression  '  chief  lord '  denotes  not  the  superior  or  sov- 
ereign, but  the  immediate  lord  ;  as  the  tenant  in  chief  is  the  im- 
mediate tenant.     See  before,  book  ii.  c.  8.  ss.  5,  8. 


II,  *215  h.]    EXCEPTIONS  OF  FELONY.  451 

bow  he  was  a  felon,  as  in  an  exception  of  bastardy,  it 
must  be  set  forth  how  a  bastard.  And  when  he  has 
explained  how  he  was  a  felon,  then  he  must  aver  it  by 
record,  on  account  of  the  danger  there  might  be  of  an 
attaint,  if  the  jurors  of  the  assise  should  make  a  false 
verdict.  For  if  he  says  that  he  was  adjudged  felon  at 
such  or  such  a  place,  yet  this  is  not  suflBcient,  unless 
the  judgment  was  fully  executed,  and  for  this  some 
record  should  be  vouched  as  a  warrant.  And  for  this 
reason  it  plainly  appears  that  no  judgment  of  felony 
ought  to  be  given  except  in  presence  of  some  one  to 
bear  record  thereof.  If  the  tenant  says  that  he  was 
outlawed,  to  this  it  may  be  answered  that  such  out- 
hiwry  was  afterwards  legally  reversed,  as  is  above 
mentioned. 

2.  If  the  tenant  says  that  the  plaintiff  had  an  elder 
brother  who  committed  felony  for  which  he  suffered 
judgment,  *so  that  no  right  could  descend  from  the 
ancestor  except  through  him,  by  reason  of  whose 
felony  he,  as  chief  lord,  entered  into  the  tenements  as 
his  escheat, — whereas  there  are  diverse  opinions  upon 
this  point,  we  \vill  that  it  be  understood  that  the  law 
in  such  case  as  to  all  writs  is  this:  that  if  the  eldest 
brother  survived  the  ancestor  of  whose  seisin  this 
assise  is  brought,  or  if  he  died  before  the  ancestor  and 
left  any  issue  still  living,  this  assise  shall  fall,  and 
otherwise  it  shall  not,  but  the  assise  shall  be  taken  by 
virtue  of  the  right  which  descended  from  the  ancestor 
to  the  younger  son,  since  the  right  never  found  any 
elder  brother,  or  issue   of  him,   to   whom   it  might 


452  BRTTTOX.  [II,  *216. 

descend ;  and  such  case  shall  be  treated  as  if  he  had 
never  been  born,  and  no  mention  shall  be  ever  made 
of  him  in  counting  of  any  descent.  And  if  such  a 
count  be  challenged  for  the  omission,  it  shall  be 
answered  that  he  did  not  live  until  any  right  could 
descend  to  him  ;  and  that  if  any  did  descend  to  him,  it 
nevertheless  resulted  to  the  ancestor  from  whom  it 
came,  so  that  the  right  descended  from  the  father  or 
other  ancestor  to  the  younger  brother  without  any 
intermediate,  as  if  no  elder  had  ever  existed. 

3.  Exception  of  bastardy  being  objected  against  any 
plaintiff  or  tenant  in  this  assise  stays  the  assise 
in  all  cases  ;  and  sometimes  it  turns  it  into  a  jury, 
and  sometimes  the  cognisance  thereof  is  transferred 
to  be  decided  in  Court  Christian.  ^aSTevertheless 
against  one  who  is  under  age  and  tenant,  no  averment 
shall  pass  upon  an  exception  of  bastardy  before  he  is 
of  full  age,  because  that  exception  determines  the 
right.  But  if  the  exception  be  pleaded  against  the 
plaintiff,  although  he  be  under  age,  yet  it  does  not 
follow  that  a  jury  shall  not  be  had  to  ascertain  the 
truth  concerning  such  exception.  And  if  the  tenant 
say  that  the  plaintiff's  fatlier  was  never  married  to  his 
mother,  this  fact  must  be  certified  by  the  bishop 
and  ordinaries.  And  if  the  same  exception  is  put 
forward  against  both,  the  legitimacy  of  the  plaintiff 
must  first  be  ascertained  ;  for  if  he  cannot  prove  his 
legitimacy,  the  possession  will  remain  with  the  tenant, 
whether  he  is  a  bastard  or  not. 

4.  Again,  the  tenant  may  say  that  if  the  plaintiff 


II,  *216  b.]     EXCEPTIONS  OF  FELONY.  453 

ever  had  any  right,  or  if  his  ancestor  had  it,  that 
right  has  he  released  and  quitclaimed.  In  this  case 
however  it  is  not  enough  to  plead  this  in  words, 
although  he  may  have  suiRcient  suit,  but  he  must 
make  it  appear  by  record  of  our  court,  or  by  writing, 
or  charter  of  the  plaintiff.  And  even  this  quitclaim 
will  not  avail  if  the  plaintiff  can  prove  that  no  fee  or 
freehold  or  right  had  descended  to  him  at  the  time  of 
making  it,  or  that  he  was  under  age,  or  not  in  his  right 
mind,  or  that  the  person  to  whom  the  quitclaim  was 
made  was  not  at  the  time  in  seisin  of  the  tenement, 
but  afterwards  thrust  himself  into  seisin  by  intrusion 
or  by  force. 

*5.  Again,  the  tenant  may  say  that  the  plaintiff 
wrongfully  impleads  him,  for  that  the  ancestor  of  the 
plaintiff  enfeoffed  him,  and  bound  the  plaintiff  to  war- 
ranty, and  therefore  if  he  were  impleaded  by  anothei", 
he  should  vouch  him  to  warranty ; — and  if  this  be 
proved  or  not  denied  the  action  shall  fall ;  * — wherefore 
the  purchaser  entered  therein  Avhen  the  seisin  was 
vacant  by  the  assent  and  induction  of  the  feoffor,  or 
by  judgment  of  our  court,  and  not  by  his  own  intrusion 
or  force ;  or,  although  the  entry  was  wrongful  and 
defective,  yet  the  plaintiff,  or  another  who  had  as  great 
a  right,  afterwards  ratified  it  by  confirmation ;  and  if 
this  be  true,  the  assise  shall  fall. 

6.  Again,  the  tenant  may  claim  title  by  reversion, 
or  through  a   fine   in   our  court,    w^hich   supposes   a 

1  There  appears  to  be  an  error  or  omission  in  the  text  at  this 
point,  which  I  liave  been  unable  to  correct. 


454  BKTTTOX.  [IT,  *^ir. 

reversion  in  default  of  issue,^  althongbi  it  be  prej- 
udicial to  the  plaintiff;  and  if  tbe  plaintiff  does 
not  avoid  the  line,  the  action  shall  fail,  nnless  the 
])laintiff  has  a  fee-tail  by  form  of  gift.  The  fine  may 
be  avoided  several  ways  ;  for  it  is  sufficient  if  he  to 
whom  it  is  prejudicial  was  detained  in  prison  or  out  of 
the  realm  of  England,  or  under  age,  or  out  of  his  right 
mind,  or  deaf  or  dumb,  whereby  he  could  not  reclaim 
the  fine  within  the  year  and  day. 

7.  Where  the  tenant  says  that  he  cannot  answer 
without  us,  if  he  produces  a  charter,  whereby  we  are 
bound  to  warranty  and  exchange,  the  assise  shall  stand 
over,  but  not  otherwise. 

*8.  Again,  he  may  claim  title  by  judgment  of  our 
court,  either  b}'  surrender  or  by  default  made  by  the 

1  There  is  a  confusion  here,  which  I  am  unable  satisfactorily 
to  clear  up.  Tiie  words  par  reversioun  ou  appear  to  liave  been 
slipped  into  the  text  by  mistake.  The  words  Jin  qe  suppose  re- 
versioun are  from  Fleta,  where  the  word  supponit  is  perhaps 
used  in  the  sense  of  '  suppresses  '  or  '  destroj  s.'  After  the  statute 
De  donis  covdifionah'bus,  which  is  alluded  to  above,  but  is  not 
noticed  in  Fleta,  a  reversion  for  default  of  issue  could  not  be 
barred  by  fine,  as  had  previously  been  the  usage.  But  at  tlie 
time  when  Britton  and  Fleta  were  written,  such  a  plea  might 
still  be  common  with  reference  to  a  fine  levied  before  tlie  pass- 
ing of  the  statute,  it  being  expressly  provided  that  this  enact- 
ment should  not  be  retrospective.  The  later  operation  of  a  fine 
to  bar  tlie  issue  in  tail  was  a  consequence  of  the  construction  put 
upon  the  Stat.  4  Hen.  VII.  c.  24 ;  see  Coke,  Inst.  ii.  517,  518  ; 
Brooke,  Abr.  ti.  Fine  pi.  1 ;  Blackstone.  Comm.  vol.  ii.  pp.  118, 
354 ;  Reeves,  Hist.  Eng.  Law,  vol.  iv.  pp.  135,  138  ;  Hallam, 
Const.  Hist.  vol.  i.  p.  14. 


II,  *217  k.]    EXCEPTIONS  OF  FELONY.  455 

plaintiff  or  his  ancester,  or  in  some  other  manner.  Or 
he  may  say,  that  although  he  had  once  a  right  to 
bring  this  assise,  nevertheless  he  has  defeated  that 
right,  inasmuch  as  he  has  not  observed  the  proper  order 
ol  pleading ;  for  he  formerly  brought  his  plaint  against 
the  same  tenant  for  the  same  tenements  in  the  property 
by  writ  of  right,  wherefore  he  cannot  come  back 
afterwards  to  plead  upon  the  possession.  Or  thus  : 
that  assise  ought  not  to  be,  because  an  assise  formerly 
passed  between  the  same  persons  of  the  same  tene- 
ments, and  in  favour  of  the  tenant ;  and  if  this  be 
verified,  the  second  action  in  all  kinds  of  assises 
shall  abate.  So,  if  there  is  another  assise  concerning 
the  same  tenement  between  the  same  persons  still 
pending,  as  by  reason  of  a  plea  of  bastardy  pending  in 
Court  Christian,  or  for  other  reason.  The  like  if  the 
tenant  can  aver  that  the  plaintiff  holds  to  an  equal 
A'alue  by  exchange. 

9.  Again,  the  tenant  may  say  that  the  tenement  is 
the  right  of  another,  which  the  plaintiff  cannot  bring 
in  judgment  without  the  tenant's  wife,  in  whom  the 
freehold  rests,  and  that  he  holds  nothing  therein  save 
jointly  with  his  wife.  *And  this  he  may  verify  three 
ways,  either  because  they  were  enfeoffed  to  hold  in 
common,  in  which  case  he  must  either  shew  a  charter 
or  vouch  some  record  ;  or  because  he  found  his  wife 
seised  thereof  before  he  married  her ;  or  because  the 
tenement  descended  to  his  wife  as  her  inheritance  after 
his  marriage  with  her. 

10-  Or  he  ma}'  say  that  the  plaintiff  is  his  villain 


456  BEITTON.  [LI,  *21T  h. 

and  his  astrer,  and  abiding  in  his  villenage  ;  ^  and  if 
this  be  verified,  the  action  shall  fall. 

11.  If  the  tenant  is  deaf  and  dumb  naturally,  and 
the  same  is  not  lately  come  upon  him  through  sickness, 
or  if  he  is  a  mere  madman  or  an  idiot  from  his  birth, 
so  as  to  be  incapable  of  discretion,  the  assise  shall  stand 
over  until  he  is  in  a  better  state.^  In  the  same  manner 
also  where  the  tenant  is  under  age,  the  assise  shall 
stand  over  until  his  age,  if  his  ancestor  died  seised  of 
the  tenement  as  of  fee,  of  whatever  kind  of  fee  it  be, 
whether  knights'  fee,  free  farm,  burgage  or  other. 
And  if  the  plaintiff  who  brings  a  plaint  against  his 
chief  lord  is  under  age,  in  such  case  the  assise  shall 
stand  over  until  his  age,  if  the  lord  claims  nothing  but 
the  seigniory  ;  but  if  he  or  another  claims  a  freehold 
therein,  the  assise  shall  go. 

1  That  is.  as  I  understand  it,  in  the  lord's  villenage,  or  upon  his 
demesne.  An  astrer  (Lat.  astrarius)  was  a  peasant  householder, 
residing  at  the  hearth  or  home  (astre)  where  he  was  bred,  '  vil- 
lanus  in  veteri  astro  suo  commorans.'  (Fie.  217  (§  8);  Hengham 
Mag.  c.  viii.  p.  103.)  The  word  astre,  in  this  sense,  has  been 
supposed  to  he  connected  with  the  English  hearth,  Anglo-Saxon 
heoro,  but  seems  to  be  common  to  many  of  the  medieval  Roman 
dialects.  See  Spelman,  Gloss,  s.  v.  astre  ;  Ducange,  Gloss,  s.  vv. 
astre,  stare. 

2  This  appears  to  be  one  of  those  instances  in  which  Bracton  or 
Fleta  has  been  carelessly  paraphrased.  The  direction  to  put  off 
the  assise  refers  to  the  case  where  the  incapacity  arises  from 
sickness.  Compare  Brae.  274  ;  Fie.  298  (§  29).  In  the  other  case,, 
according  to  Bracton,  cadit  assisa. 


II,  *218.J  OF  ASSISES.  457 


^CHAPTER  XXIII. 

Of  Assises  of  Mortdancester  turned  into  Juries. 

1.  Sometimes  this  assise  descends  from  its  com- 
prehensive nature,  and  is  turned  into  a  jury  ;  and  this 
for  many  causes  in  the  same  way  as  the  assise  of  Novel 
Disseisin.^  Thus,  it  sometimes  happens  by  reason  of 
form  of  gift,  where  the  heir  female  is  to  be  admitted 
to  the  inheritance  before  the  heir  male. 

2.  So,  where  any  one  has  brought  this  assise  against 
his  lord,  and  the  lord  answers  that  he  claims  nothing 
but  wardship,  and  to  this  it  is  replied  that  he  cannot 
claim  wardship,  because  the  fee  is  neither  chivalry  nor 
serjeanty,  and  the  lord  says  that  he  and  his  ancestoi-s 
have  had  the  wardship  thereof  from  the  time  whereof 
memory  runneth  not, — if  the  party  traverses  and  denies 
this,  in  such  case  the  truth  shall  be  inquired  by  the 
jurors  in  form  of  jury. 

^  '  The  first  point  in  tlie  writ  is  whether  the  ancestor  died 
seised  ;  the  second,  whether  he  died  within  the  term  ;  the  third, 
wliether  the  demandant  is  next  heir.  If  the  assise  passes  upon  the 
substance  (sus  le  gros)  of  these  three  points,  it  passes  in  its  gen- 
ei-al  nature  (grosse  nature).  But  if  the  tenant  put  forward  an 
exception  against  the  demandant,  to  which  he  answers,  and  says 
that  it  ought  not  to  affect  him,  and  for  sucli  a  reason,  and  tendeis 
averment  by  tlie  assise,  if  then  it  passes,  it  is  as  a  jury.'  (Note 
in  MS.  N.) 


458.  BRITTON.  [U,*2lSb. 

3.  So,  upon  the  exception  of  sale,  as  where  the 
plaintiff  is  answered,  that  he  had  an  elder  brother 
acknowledged  as  heir  and  seised  of  the  inheritance, 
who  sold  the  land  to  the  tenant,  if  the  plaintiff  says 
that  this  brother  w^as  never  seised,  so  as  to  be  able  to 
make  alienation,  or  that  although  he  was  himself 
seised,  yet  he  never  put  the  tenant  in  seisin  during  his 
lifetime,  the  truth  shall  be  inquired  by  jury.  The 
same,  w4iere  the  tenant  puts  forward  a  release  from 
the  plaintiff's  ancestor,  and  he  denies  that  it  was  ever 
the  deed  of  his  ancestor. 

4.  Likewise,  if  the  tenant  says  that  he  claims  nothing 
save  by  the  la\v  of  England  for  term  of  life,  *and  the 
plaintiff  says  that  he  never  had  issue  by  his  wife ;  in 
such  and  in  many  other  cases  the  assise  shall  be  turned 
into  a  jury  if  the  parties  consent,  and  if  not,  it  shall  be 
adjudged  against  him  that  will  not  consent. 

5.  So,  on  account  of  a  supposititious  child,  as  where 
any  one,  pretending  to  be  heir,  demands  by  this  assise 
against  the  true  heir,  if  such  right  heir  says  that  the 
plaintiff  was  not  begotten  by  him  whose  seisin  he 
demands,  for  that  at  the  time  of  his  birth  the  person 
whom  he  alleges  to  be  his  father  was  in  parts  beyond 
sea,  and  had  been  so  for  two  years  and  upwards  before, 
or  impotent,  or  labouring  under  such  an  infirmity  that 
he  could  not  be  presumed  capable  of  begetting  children, 
but  that  as  soon  as  he  returned  he  removed  him  from 
his  house  as  the  offspring  of  another,  or  that  although 
he  acknowledged  him  for  his  own,  it  was  well  known 
and  notorious  that  he  was  not  begotten  by  such  ancestor ; 


.11,^219.]  OF  ASSISES.  459 

if  this  point  be  contested  between  tlie  parties,  the 
assise  is  at  an  end,  and  the  truth  shall  be  inquired  by 
jury;  and  so  in  numberless  other  cases. 


CHAPTER  XXIV. 

Of  the  Judgment  in  an  assise  of  Mortdancester. 

1.  When  the  parties  have  pleaded  to  the  assise,  let 
the  jurors  be  called,  and  let  those  who  are  absent  bo 
^amerced,  and  the  rest  go  and  lay  their  hands  on  the 
book.  Then  let  it  be  asked  of  the  parties,  whether 
they  have  anything  to  say  wherefore  the  jurors  should 
not  be  sworn  one  after  another ;  and  after  their 
challenges  are  allowed,  as  we  have  said  before  in 
treating  of  the  assise  of  Novel  Disseisin,  if  there  do 
not  remain  as  many  as  twelve  unchallenged,  let  that 
day  be  respited  and  let  the  sheriff  be  commanded  to 
cause  a  sufficient  number  to  come  on  another  day. 

2.  When  there  are  jurors  enough,  let  them  go  and 
be  sworn  in  the  manner  described  in  assise  of  Novel 
Disseisin.  Afterwards  let  them  be  charged,  and  safely 
kept  so  that  no  one  come  near  them  until  they  have 
given  in  their  answer.  And  according  to  their  verdict 
let  judgment  be  given  for  the  one  party  or  the  other. 
And  afterwards  let  the  damages  be  taxed  by  the 
jurors,  as  before  is  said. 

3.  If  several  persons  bring  this  assise  of  the  deatli 
of  their  common  ancestor,  and  the  jurors  cannot  say 
which    of  them  all  is    nearest  heir,  in  such  case  tlio 


4G0  BPJTTON.  [II,  *219  b. 

seisin  shall  remain  with  the  tenant,  unless  the  plaintiffs 
for  the  manifestation  of  their  right  cause  the  jurors 
to  be  charged  upon  some  point,  or  they  themselves 
declare  it,  whereby  the  Justices  may  be  informed 
which  of  them  has  the  best  right  of  action.  If  several 
assises  are  brought  against  one  tenant  for  one  and  the 
same  tenement  demanded  by  divers  descents,  in  such 
case  the  *recoo:nisance  must  first  be  taken  of  that 
assise  which  is  brought  upon  the  last  seisin.  If  a 
perambulation  is  necessary,  let  it  be  made  as  hath  been 
said  above.  The  party  which  is  in  the  wrong  shall 
be  moderately  or  heavily  amerced,  according  as  his 
claim  was  malicious  or  founded  on  a  colour  of  right. 


CHAPTER  XXV. 

Of  the  writ  called  Quod  permittat. 

1.  Sometimes  it  happens  that  although  the  right 
heir  has  obtained  the  seisin  of  his  inheritance,  never- 
theless he  is  hindered  from  having  the  seisen  of  some 
common  or  other  appurtenance  annexed  to  his  in- 
heritance, in  another's  soil,  and  whereof  his  ancestor 
died  seised  ;  in  which  case  no  remedy  lies  for  the  heir 
by  this  assise,  but  by  a  simple  jury  proceeding  by 
virtue  of  a  writ  provided  in  this  case,  called  Quod 
permittat.  The  same  remedy  is  provided  for  successors 
against  the  deforceors  of  such  appurtenances  whereof 
their  predecessors   died   seised   as   in   right   of   their 


II,  *220.]         OF  QUOD  PERMITTAT.  461 

churches.  And  if  there  are  several  deforceors  who 
hold  in  common,  then  all  must  be  named  in  the  writ, 
or  tlie  writ,  if  it  be  challenged,  will  be  abatable. 

2.  This  writ  tries  only  the  right  of  possession,^  and 
is  therefore  limited  within  the  same  term,  and  to  the 
same  persons,  as  the  assise  of  Mortdancester ;  *and 
beyond  this  term  no  writ  lies  in  this  case  except  a 
\vrit  of  right  patent  pleadable  in  the  court  of  the  lord 
of  the  fee. 

3.  In  this  writ  of  possession  an  essoin  lies  the  first 
day  as  well  for  the  tenant  as  for  the  plaintiff.     And 

^  '  Sonietinies  the  Quod  permittat  may  be  altogether  in  the 
Right,  when  it  contains  the  words  habere  debet ;  sometimes  al- 
together in  tlie  Possession,  by  reason  of  the  word  solet,  and  this 
when  the  demandant  demands  of  his  own  seisin.  But  when  one 
demands  the  seisin  of  his  ancestor,  this  savours  of  the  nature  of 
Mortdancester,  because  the  writ  sliall  make  mention  that  the 
ancestor  was  seised  of  the  thing  as  of  fee  as  appurtenant  to  his 
freehold  in  such  a  town  the  day  wliereon  he  died.'  (Note  in 
MS.  N.)  A  writ  of  Quod  permittat  containing  the  words  habere 
debet  was  treated  as  a  writ  of  right,  triable  by  battle  or  great 
assise  ;  and  accordingly  it  was  decided  in  32  Edw.  I.  that  a 
parson  could  not  prosecute  such  an  action  without  aid  of  the 
patron  and  the  bishop.  Year  Book,  32  Edw.  I.  pp.  117,  510. 
Compare  Vetus  Natura  Brevium,  68  6.  In  the  examples  given 
by  Bracton  of  this  writ,  which  he,  as  well  as  our  author,  de- 
scribes as  affecting  the  possession  and  not  the  property,  the 
action  is  founded  upon  the  seisin  of  the  ancestor  of  the  plaintiff, 
or  of  the  predecessor  of  a  parson  claiming  in  right  of  his  clmrch. 
For  the  forms  of  writ  in  which  the  demandant  founded  his  claim 
upon  his  own  seisin,  and  of  those  in  which  the  words  debet  and 
svlet  were  contained,  see  Regist.  Brev.  Orig.  155,  156  ;  Fitzher- 
bert,  Nat.  Brev.  123  ;  and  compare  below,  1.  v.  c.  14.  s.  1. 


4G2  BRITTOX.  [IT,  *220  (?. 

if  the  tenant  makes  default,  let  the  distress  run  accord- 
ing to  the  process  before-mentioned  in  the  chapter  of 
Quo  jure.  Demand  of  view  and  voucher  of  warranty 
both  lie  in  this  writ. 


CHAPTER  XXVI. 

Of  the  writs  of  Cosinage,  Ael,  and  Besael. 

1.  As  the  assise  of  Mortdancester  is  limited  within 
certain  degrees,  and  holds  only  of  the  death  of  certain 
persons  and  against  certain  persons  and  extends  no 
further,  certain  writs  in  degrees  adjoining,  to  which 
that  assise  does  not  extend  except  by  reason  of  another 
person  joined  with  the  plaintiff,  have  been  provided  in 
aid  of  that  assise,  whereby  in  all  cases  of  so  recent  a 
seisin  a  plaintiff  will  not  be  compelled  to  have  recourse 
to  a  writ  of  right,  wherein  there  are  many  delays  and 
risks.  These  writs  are  those  of  Cosinage,  Ael,  and 
Besael,  by  which,  if  the  time  allows,  the  right  of 
possession  may  be  tried. 

2.  As  these  Avrits  are  provided  in  aid  of  that  assise, 
it  is  reasonable  that  they  should  in  a  great  measure 
follow  the  nature  of  it,  as  in  respect  of  the  term,  and 
therefore  the  same  limitation  of  term  *is  fixed  for  one 
and  the  other  ;  so  likewise  they  hold  between  the  same 
persons  out  of  the  degrees,  for  these  writs  take  effect 
between  the  same  persons  beyond  the  limits  of  the 
assise,  between  whom  the  assise  lies  within  the  limits, 
(and   not  between  other  persons,  as  privies  of  blood 


II,  *220  k]  OF  COSINAGE.  463 

claiming  by  the  same  descent),  ascending  to  the  grand- 
father's  grandfather,  if  the  time  admits  of  it,  and 
descending  to  the  remotest  blood. 

3.  It  should  be  understood,  that  all  those  who  issue 
from  uncles  and  aunts,  as  well  on  thepart  of  the  father 
as  on  the  part  of  the  mother,  and  all  those  who  issue 
from  brothers  and  sisters,  and  those  also  who  issue 
from  their  issue,  in  the  degrees  to  which  the  assise  of 
Mortdancester  does  not  extend,  are  properly  cousins 
to  each  other.  And  in  the  right  line  descendins:  thev 
are  cousins,  as  well  as  in  the  collateral  lines.  For  as- 
cending they  are  ancestors,  or  grandfathers  or  great- 
grandfathers, and  descending  they  are  cousins,  because 
the  great-grandfather  or  the  grandfather's  grandfather 
may  b}*^  writ  of  Cosinage  demand  the  seisin  of  the 
lowest  found  in  the  right  line,  and  the  grandfather  or 
father  or  mother  by  the  same  writ  may  demand  the 
seisin   of  the  son  or  daughter ;  ^    where  in  the  other 

^  Our  author  appears  to  stand  alone  in  asserting  a  right  of  in- 
heritance in  the  ascending  line.  (See  post,  1.  vi.  c.  3.  s.  4.)  •  A 
has  a  son  B,  and  no  other  of  his  blood  ;  B  purchases,  and  dies 
without  issue.  Qiicustio.  Whether  Ids  father  can  or  ought  to 
have  the  purchase.  Solutio.  The  chief  lord  and  not  the  father, 
because  the  son  is  of  the  blood  of  the  father,  but  the  father  is 
not  of  the  blood  of  the  son.  But  the  purchase  shall  ascend  col- 
laterally, as  to  uncle  or  aunt,  and  this  is  the  first  resort,  for  in 
every  Cosinage  the  count  must  be  by  resort.  The  second  resort 
is  to  the  grandfather's  or  grandmother's  brother  or  sister ;  the 
third  to  the  brother  or  sister  of  the  great-grandfather  or  great- 
grandmother.  But  the  seisin  of  the  grandfather's  grandfather 
cannot  be  counted  of,  save  in  the  wiit  of  right  ;  so  that  by  the 


464  BRITTON.  [II,  *221. 

direction  assise  of  Mortdancester,  writs  of  Ael  and 
Besael,  and  writ  of  riglit  would  lie. 

4.  In  order  to  see  plainly  in  what  degrees  they  are 
cousins  in  relation  to  the  father  or  others  found  in  the 
direct  line,  let  a  line  be  drawn  straight  down,  and  let 
there  be  placed  therein  four  degrees,  one  above  the 
other,  in  the  first  of  which  let  great-grandfather  and 
great-grandmother  be  placed,  in  the  second  grandfather 
and  grandmother,  in  the  third  ^father  and  mother 
and  in  the  fourth  son  and  daughter.  From  the  three 
upper  degrees  let  three  cross  lines  be  drawn  on  each 
side,  and  for  every  male  child  let  a  degree  be  made  b}' 
itself  on  the  one  side,  and  likewise  for  every  female 
child  on  the  other  side,  and  for  every  child  of  these 
children  let  a  degree  be  made  further  down,  and  so  on 
for  the  issue  of  that  issue  from  degree  to  degree,  the 
eldest  always  filling  the  degree  adjoining  the  father  or 
mother  in  the  right  line  descending.  The  degree 
found  under  the  great-grandfather  signifies  his  eldest 
son,  and  in  the  degrees  at  the  side  of  the  son,  who  is 
called  grandfather,  are  the  younger  brothers  and 
sisters  of  the  grandfather,  who  are  uncles  and  aunts 
to  the  father  or  mother,  and  so  by  like  reason  it  is  to 
be  understood  of  all  the  other  degrees  below. 

5.  All  those,  of  whose  death  neither  assise  of  Mort- 

fourth  resort  demand  can  only  be  made  in  a  writ  of  right.' 
(Note  in  MS.  N.)  For  the  purpose  of  limitation  the  degrees  ap- 
pear to  have  been  counted  back  from  the  person  whose  seisin  was 
demanded,  not  from  the  claimant.  See  Year  Book,  32  Edw.  I. 
p.  145. 


II,  *221J.]  OF  GOSINAGE.  405 

<lancester  nor  writ  of  Ael  or  Besael  lies,  are  cousins, 
and  where  no  remedy  lies  by  these  writs,  it  lies  by 
writ  of  Cosinage,  as  long  as  the  time  allows,  beyond 
which  no  kind  of  remedy  lies  but  by  writ  of  right, 
which  is  the  *last  remedy  of  all.  The  nature  of  the 
plea  of  Cosinage  serves  to  explain  the  descents  and  the 
resorts  as  well  of  the  right  line  as  of  the  collateral,  and 
the  descent  and  the  resort  of  the  kindred  out  of  the 
right  line  to  the  collateral. 

6.  In  counting  upon  this  writ  no  mention  should  be 
made  of  the  right,  nor  in  any  writ  of  possession, 
where  no  mention  is  made  thereof  in  the  writ ;  for  by 
variance  between  the  writ  and  the  declaration  the 
writ  would  be  abatable  ;  but  in  this  writ  and  in  those 
of  Ael  and  Besael  it  is  sufficient  to  count  of  the  sesin 
of  the  cousin  or  grandfather  or  great-grandfather,  who 
died  seised  in  his  demesne  as  of  fee,  without  speaking 
of  the  right.  For  these  two  words,  'in  his  demesne  as 
of  fee,'  bring  in  judgment  all  the  possessor}'^  right ; 
and  when  the  word  '  right '  is  expressed  in  the  count, 
it  imports  that  the  plaintiff  intends  to  bring  in  ques- 
tion the  property,  whereof  if  the  writ  makes  no  men- 
tion, and  the  error  is  challenged,  the  writ  thereby 
abates. 

7.  Moreover  it  is  not  essential  to  count  in  any  pos- 
sessory writ  of  any  taking  of  profits,  and  this  is  no 
more  necessary  in  pleas  of  Cosinage  or  Ael  or  other 
writs  of  possession,  than  in  assise  of  Novel  Disseisin 
or  Mortdancester.      For  one  may  be  seised  without 

taking  profits,  as  the  right  heir  becomes  seised  after  the 
30 


466  BKITTON".  [II,  *222. 

death  of  his  *ancestor,  the  inheritance  being  vacant, 
by  setting  his  foot  thereon,  and  others  in  whose  per- 
sons the  property  rests  by  a  single  conjunction  of  the 
right  with  the  possession,  the  tenement  being  first 
vacant ;  in  which  cases  although  such  heir  should  die 
before  taking  any  of  the  profits,  yet  he  would  never- 
theless die  seised  in  his  demesne  as  of  fee.  If  however 
the  taking  of  esplees  is  mentioned  and  can  be  verified, 
these  Avords  are  rather  of  service  than  otherwise,  since 
they  tend  strongly  to  declare  the  seisin. 

8.  In  this  w^rit  lie  essoins,  process  by  Caiye  upon  de- 
fault, demand  of  view^,  voucher  of  warrant,  exceptions 
of  the  same  descent,  of  seisin,  of  last  seised,  of  his 
demesne  as  of  fee,  of  so  much  land,  of  term  of  prox- 
imity, of  non-tenure,  of  felony,  of  errors,  of  bastardy, 
and  the  others  mentioned  above  in  assise  of  JVIort- 
dancester. 


BOOK  IV. 

OF    PLEAS    RELATING    TO    ADVOWSONS   AND    THE  PROPERTY 
OP  CHURCHES  ;  AND  OF  ATTAINTS. 

CHAPTER  I. 

Of  the  Assise  of  Last  Presentation. 
I. 

An  assise  of  last  presentation  is  the  recognisance  of 
twelve  jurors,  which  tries  the  right  of  possession  to 
the  advowson  of  any  church,  that  is,  who  last  present- 
ed in  his  own  name  in  time  of  peace.  *This  may  some- 
times be  pleaded  before  our  Justices  Itinerant, 
sometimes  in  the  Bench  at  Westminster  by  the 
ordinance  of  the  Great  Charter,  and  sometimes  for 
the  dispatch  of  justice  before  our  Justices  especially 
authorized  for  that  purpose.  Sometimes  the  assise  is 
begun  in  one  place  and  is  ended  in  another ;  and  some- 
times it  is  begun  out  of  the  county,  and  the  recogni- 
ance  or  jury  is  taken  in  the  county;  and  sometimes 
the  parties  are  adjourned  to  hear  their  judgment,  and 
sometimes  not  adjourned. 

2.  Therefore  where  any  person  has  presented  to  a 
vacant  church  to  which  he  or  his  ancestors  have  pre- 
sented in  time  of  peace,  inasmuch  as   every  heir  ought 

to  enjov  the  seisin  which  his  ancestor  had,  unless  the 

467 


468  BKITTOK  [II,  *223 

disturbor  or  deforceor  can  show  plain  reasons  to  the 
contrary,  which  contest  is  determinable  by  this  assise 
of  last  presentation,  we  must  first  see  to  whom  it  be- 
longs to  bring  this  assise.  For  it  belongs  only  to  him 
who  has,  once  or  oftener,  presented  in  his  own  name, 
or  to  his  heir  by  reason  of  his  succeeding  to  the  inher- 
itance and  the  right  of  an  ancestor  who  died  seised  of 
the  advowson. 

3.  What  is  said  of  one  heir  may  be  understood  of 
several  who  are  parceners  and  as  one  heir.  But  if 
several  parceners  *recover  the  advowson  of  any  church 
by  this  assise,  and  the  church  is  void,  no  parcener  can 
present  without  the  other  by  any  prerogative  of  seni- 
ority, or  for  any  other  reason.  By  this  assise  shall 
never  lie  for  those  who  hold  in  common  by  feoffment 
and  not  by  descent,  before  they  have  been  seised  of 
the  presentation,  since  two  persons  can  never  recover 
by  this  assise  who  make  their  demand  of  the  seisin 
of  him  or  of  them  whose  heirs  thev  are  not,  anv  more 

•^  74. 

than  in  pleas  of  right,  Neither  does  it  lie  for  those 
who  bold  for  term  of  years,  or  for  term  of  life  by 
reason  of  dower,  or  by  the  law  of  England,  or  in  gage, 
or  by  feoffment,  or  by  escheat,  or  by  any  mode  of  ac- 
quisition other  than  succession. 

4.  If  the  plea  is  not  in  the  Bench,  tiien  one  essoin  and 
no  more  lies  for  each  party,  so  that  after  their 
appearance  there  is  no  essoin.  And  if  the  deforceor 
makes  default,  then  the  process  above-mentioned  in 
the  chapter  of  summons  takes  place.  And  if  the  plea 
is  in  the  countv,   although  it  commenced  out  of  the 


IT,  "223  J.]  OF  DAY  OF  PLEA.  469 

county,  no  resummons  after  default  shall  lie,  nor  any 
essoin,  nor  any  delay.  And  if  the  plaintiff  is  under 
age,  neither  essoin  nor  resummons  ever  takes  place, 
whether  the  plea  be  within  the  county  or  without ;  *for 
in  such  case  the  absence  of  the  tenant  is  as  good  as  his 
presence.  Neither  does  resummons  lie  in  cases  of 
contumacy  ;  as,  where  the  tenant  or  the  disturbant 
appears  in  court,  and  contemptuously  departs,  after  he 
has  been  seen  by  the  Justice  in  court ;  but  in  such  case  the 
assise  shall  be  forthwith  taken  without  any  resummons ; 
also,  if  the  defendant  makes  default,^  resummons  shall 
not  lie.  So,  when  he  appears,  and  will  not  or  cannot 
allege  any  cause  why  the  assise  should  be  stayed,  let 
the  assise  be  presently  taken,  if  the  jurors  are  present, 
and  if  not,  let  the  sheriff  be  commanded  to  have  their 
bodies  at  another  day. 


CHAPTEK  11. 

Of  the  day  of  Plea  ;  and  of  the  Count  of  the  Plaintiff. 

When  the  parties  appear  in  court,  it  will  then  behove 
the  plaintiff,  after  the  writ  has  been  read  in  audience, 
to  declare  his  case  in  such  a  way  as  to  show  how  he 
hath  right  of  action  and  reason  to  complain,  and  of 
whose  seisin  he  has  brought  the  assise, — whether  of 
his  own  seisin  or  of  that  of  another.     If  of  his  own 

1  That  is,  default  after  resummons  ;  see  the  parallel  places  in 
Bracton  and  Fleta.  Perhaps  we  should  read,  '  defaute  apres 
defaute.' 


470  BPJTTON.  [II,  *224. 

seisin,  it  will  be  necessary  for  him,  in  order  to  certify 
the  court  of  his  right,  to  say  further,  whether,  when 
he  presented,  he  held  any  glebe,  such  as  rent  or  soil,  to 
which  the  advowson  was  appendant,  or  not,  "^and  if  he 
holds  such  glebe,  then  he  must  set  forth  how  he  hokls 
it,  whether  in  fee  or  for  term  of  life  or  for  any  other 
term.i  If  he  says  that  he  demands  the  seisin  of  some 
ancestor,  them  he  must  show  how  he  is  the  heir  of  such 
ancestor,  so  that  it  may  appear  by  his  statement 
whether  he  has  a  several  action,  or  one  in  common 
with  any  parcener.  And  if  his  plaint  is  in  an  action 
upon  a  common  right,  it  should  be  further  known 
whether  it  be  his  turn  to  present  this  time  or  not. 


CHAPTER  III. 

Of  Exceptions  in  Assise  of  Last  Presentation. 

1.  The  deforceor  must  thereupon  answer.  For 
voucher  of  warrant  does  not  lie,  because  the  object  of 
the  writ  is  to  ascertain  by  the  assise,  who  has  the  best 
right  to  the  presentation.  The  deforceor  may  answer 
to  the  declaration  by  exceptions,  of  which  the  dilatory 
are  first  to  be  proposed. 

2.  As   to   the    words    in    the    writ,    '  who    is    the 

^  The  word  '  glebe  '  is  used  for  the  land  to  which  the  advowson 
is  appurtenant.  '  Nota,  quod  verus  advocatus  dicitur  ille,  qui 
patronus  est  ut  de  feodo  et  recto  ex  descensu  haereditatis.  Quasi 
advocatus  est  ille,  qui  possidet  glebam,  ad  quam  pertinet  advo- 
catio,  non  in  feodo  sed  ad  terminum.*     (Note  in  MS.  N.) 


II,  ■*224  5.]     OF  EXCEPTIONS  IN  ASSISE.      471 

advocate,'  it  must  be  understood  tbat  the  advocate  is 
he  to  whom  the  right  of  the  advowson  of  any  church 
belongs,  so  that  he  may  present  to  that  church  in  his 
own  name,  and  he  is  called  advocate  by  way  of  distinc- 
tion from  those  who  have  occasion  *to  present  in  the 
name  of  another,  as  guardians  do  in  the  name  of  infants 
under  age,  whose  lands  are  in  their  ward,  and  also 
from  those  who  hold  the  tenement  to  which  an 
advowson  is  appendant  for  a  term  of  life  or  years 
only,^  or  by  intrusion  or  disseisin,  provided  these  have 
never  presented  ;  for  if  they  have  presented,  and  so 
are  in  seisin  of  the  advowson,  they  are  thereby  become 
in  a  manner  advocates,  so  far  as  regards  the  seisin  of 
the  presentation,  as  long  as  they  hold  the  tenements 
to  which  the  advowson  is  annexed ;  for  until  the 
disseisee  or  the  true  possessor  has  recovered  the  tene- 
ment, which  is  the  principal  subject,  he  can  have  no 
claim  to  anything  accessory  thereto. 

3.  The  words  also  '  in  time  of  peace '  are  used  in 
distinction  from  time  of  war,  under  which  are  com- 
prehended all  times  of  injuries  done  by  one  neighbour 
to  another  by  violence,  and  by  intrusions,  disseisins, 
robberies,  disturbances,  oppressions,  and  other  Avrongs; 
whence  time  of  peace  may  be  thus  distinguished  and 
understood  ;  for  one  may  present  before  the  time  of 
Avar,  or  in  the  time,  or  after  the  time,  and  yet  the 
presentation  will  be  sufficient  and  lawful ;  and  so  in 
the  reverse  case,  a  presentation  may  be  made  by  extor- 
tion, in  despite  of  the  true  possessor,  by  fraud  and 
1  See  the  note  from  MS.  N.  in  p.  173. 


472  BRITTOK  [II,  *225,  225  h, 

contention.  *And  as  the  one  is  in  all  points  good  and 
lawful,  so  the  wrongful  presentation  is  never  of  any 
effect,  because  in  wrong  and  so  not  in  time  of  peace. 
And  from  such  wrongful  acts  of  violence  and  oppres- 
sion there  do  always  arise  exceptions  in  favour  of  the 
plaintiff  against  the  title  of  the  disturbor. 

4.  With  regard  to  the  word  also  contained  in  the 
writ,  '  presented,'  care  must  be  taken  to  see  whether 
the  parson  who  was  then  presented  was  upon  the 
presentation  of  such  an  one  admitted  and  instituted  by 
the  bishop  or  not ;  for  otherwise  the  presentation  was 
of  no  avail.  And  if  two  clerks  are  presented  to  the 
same  church  by  different  patrons,  both  of  them  cannot 
be  admitted  at  the  same  time,  but  one  at  least  must 
be  refused  ;  and  it  may  also  well  happen  that  neither 
of  them  shall  be  admitted,  although  one  of  the  patrons 
have  the  right  to  present,  and  this  for  two  reasons. 
One  is,  that  if  the  church  remains  unprovided  be3^ond 
six  months,  then  according  to  the  Council  of  Lateran, 
upon  the  disagreement  of  the  parties,  the  bishop  of  the 
diocese  shall  provide  for  it,  and  shall  ex  officio  give 
the  church  to  some  clerk  saving  every  one's  right.  The 
other  reason  is  the  minority  of  one  of  the  presentors, 
as  where  charters  of  his  ancestors  are  produced  against 
any  presentor  who  is  under  age,  to  which  charters  he 
can  give  no  answer  before  he  is  of  age  ;  in  such  case 
if  the  parties  do  not  agree  in  the  presentation  of  u 
parson,  the  collation  belongs  to  the  ordinary  of  the 
place,  saving  every  one's  right  when  the  person  under 
age  comes  of  age ;  but  in  such  case  it  should  be  so 


II,  *226.]       OF  EXCEPTIONS  IN  ASSISES.     473 

ordered  by  advice  of  the  Justices,  that  some  annual 
pension  be  reserved  to  the  infant  until  he  comes  of  age. 
for  the  saving  of  his  right  to  present  when  he  shall 
attain  his  age. 

5.  Two  persons  may  present  at  the  same  time,  one 
having  a  right  and  the  other  none,  or  both  of  them 
some  colour  of  right ;  and  if  it  should  happen  that 
they  both  agree  in  one  clerk,  without  trying  the  right, 
by  that  presentation  the  right  of  no  one  is  diminished  or 
altered,  but  resort  must  be  had  to  the  seisin  of  that 
patron,  of  whom  it  is  certain  that  he  last  presented 
of  right  alone.  But  if  any  one  has  once  presented 
without  opposition,  and  some  person  at  the  next 
avoidance  makes  a  disturbance,  and  afterwards  assents 
to  the  presentation  of  the  true  patron,  by  this  assent 
the  estate  of  the  patron,  as  regards  his  right  of  pre- 
sentation at  another  avoidance,  is  not  prejudiced.  For 
it  is  one  thing  to  assent  and  another  to  consent. 
Assenting  is  wrhere  any  person  who  has  no  right  to 
present,  after  having  made  a  disturbance,  says,  '  I 
assent  to  this  presentation,  saving  my  future  right ; ' 
and  such  assent  is  not  prejudicial  to  the  true  patron, 
nor  does  any  right  *accrue  thereby  to  the  disturbor. 
Consenting  is  when  any  one  who  is  in  seisin  of  the 
advowson  consents  to  the  presentation  of  him  who  has 
a  better  right.  For  the  one  may  be  in  seisin  of  the 
possessory  right,  and  the  other  of  the  property,  and  he 
who  has  more  of  the  property  has  the  greater  right.  And 
such  consent  may  be  made  simply,  or  with  protestation. 
If  made  simply,  he  thereby  renounces  all  his  right; 


474  BRITTON.  [II,  *226  J. 

if  with  protestation  in  these  words,  'saving  to  me 
my  right  at  other  avoidances,'  he  thereby  retains 
the  right  that  he  has,  whatever  it  may  be.  The 
same  rule  holds  in  advowsons  of  chapels,  prebends, 
vicarages,  hospitals,  abbeys,  priories,  and  other  places 
to  which  one  may  present  on  occasion  of  avoidance. 

6.  That  which  is  said  in  the  writ,  '  the  parson  who 
is  dead,'  is  said  to  distinguish  him  from  a  vicar,  to 
whose  vicarage  none  can  present.  The  word  '  dead  ' 
lias  a  double  meanino',  heino-  used  either  of  natural 
death,  or  death  to  the  world,  as  in  the  case  of  him  who 
becomes  professed  in  religion,  and  has  renounced  all 
worldly  things,  or  of  that  which  in  this  matter  is 
equivalent  to  death,  as  where  a  parson  has  married  a 
wife,  or  done  any  other  thing  whereby  he  is  unable  to 
retain  any  church. 

7.  It  is  contained  in  the  writ,  '  to  such  a  church 
which  is  void  ;  and  here  it  must  be  observed  whether 
it  is  entirely  void,  or  the  parsonage  only  ;  *for  if  any 
pension  has  been  granted  by  virtue  of  some  accord 
between  parties  or  by  way  of  a  simple  benefice,  and  ho 
who  received  that  benefice  dies,  the  church  and  par- 
sonage do  not  thereby  become  vacant.  The  same  is 
to  be  understood  of  a  vicar  whose  vicarage  is  not  in 
any  one's  presentation,  and  which  upon  his  death 
accrues  entirely  to  the  parson,  and  in  particular  of  a 
vicarage  endowed  by  the  ordinary  for  the  reasonable 
support  of  a  vicar.'     The  word  '  church'  is  also  used 

^  Tliere  appeiu-s  to  be  an  error  here.  In  tlie  parallel  passage  of 
Bracton  the  case  here  mentioned  is  stated  as  an  exception  to  the 


II,  *227.]     OF  EXCEPTIONS  IN  ASSISE.         475 

by  way  of  distinction  from  chapel,  and  therefore  if  in 
the  writ  it  is  said  '  church'  where  it  ought  to  have 
been  *  chapel,'  the  writ  is  thereby  abatable.  But 
whether  it  is  a  chapel  or  not  is  not  to  be  tried  in  lay 
courts,  but  in  court  Christian.' 

8.  If  the  assise  is  brought  of  the  entire  church,  where 
the  moiety  only  or  the  third  or  fourth  part  is  void,  and 
there  is  a  dispute  about  the  avoidance,  for  that  one 
side  says  it  is  void  and  the  other  that  it  is  full,  let  the 
truth  thereof  be  inquired  by  the  assise.  For  if  the 
cognisance  thereof  was  referred  to  the  bishop,  the 
church  might  be  encumbered  by  him,  or  the  trutli 
perhaps  would  not  be  returned ;  as  suppose  he  had 
admitted  and  instituted  any  clerk  in  such  church  upon 
the  presentation  of  one  who  had  no  right  to  present,  in 
such  case  he  might  return  that  the  church  was  full  and 
provided,  which  would  be  a  prejudice  to  the  true 
patron. 

*9.  And  upon  the  verdict  of  the  assise  let  the  bishop 
be  commanded  that  he  admit  the  clerk  presented,  and 
if  he  will  not,  let  him  be  forthwith  summoned  to 
answer    why   he   refuses ;   and  thus  the  incumbrance 

general  rule,  by  which  a  vicarage  became  merged  in  the  parson- 
age. '  Et  hoc  dico  nisi  taxata  fuerit  per  ordinaries  ad  rationa- 
bilem  sustentationem  vicarii.'  Brae.  241  5.  The  same  error 
occurs  in  Fleta  (as  printed),  where  the  words  are,  '  et  hoc  ubi 
taxata  fueri,  &c.     Fie.  323  (§9). 

1  This  question  was  treated  in  32  Edw.  I.  as  one  determinable 
by  the  assise.  Year  Book,  32  Edw.  I.  pp.  107,  349.  Compare 
Fie.'  323  (§  18). 


476  BRITTON.  [JI,  *22r  L 

of  the  bishop  or  other  ordinary,  if  any  there  be,  may 
be  proved.  And  if  any  ordinary  is  found  guilty  of 
such  incumbrance,  let  it  be  immediately  adjudged  that 
he  set  the  church  free,  or  otherwise  make  satisfaction 
to  the  patron  and  let  the  ordinary  remain  in  our  mercy. 
Thus  the  church  may  be  void  in  law  but  not  in  fact. 
But  where  it  is  void  both  in  law  and  in  fact,  the 
assise  shall  run  immediately,  for  then  the  church  is 
truly  and  rightfully  void. 

10.  And  if  any  clerk  has  of  his  own  folly  thrust 
himself  into  the  church  at  the  time  of  avoidance,  yet 
the  assise  shall  not  be  stayed,  but  shall  be  taken  as  if 
it  was  entirely  void  and  unprovided.  Andif  the  jurors 
sa}^  that  it  is  full  by  the  intrusion  of  such  a  clerk,  let 
the  plea  be  immediately  sent  to  the  court  Christian, 
that  the  bishop  of  the  diocese  may  certify  our  Justices 
whether  the  intrusion  be  rightful  or  tortious,  and  upon 
this  let  judgment  be  given.  For  the  recognisance  of 
spiritual  intrusions,  whether  they  are  rightful  or  not, 
does  not  belong  to  the  temporal  court  any  more  than 
that  of  other  spiritual  matters.  Yet  such  returns  of 
bishops  are  not  always  fully  sufficient,  without  further 
support  from  muniments  or  other  evidence. 

*11.  Whereas  it  is  said  in  the  writ,'  which  advowson 
such  an  one  saith  belongs  to  him,'  it  is  right  that  the 
plaintiff  should  plainly  show  how  he  hath  right,  and 
reason  for  complaint.  It  is  likewise  said,  'summons 
such  an  one ; '  therefore  the  plaintiff  must  in  the 
declaration  of  his  case  point  out  how  and  in  what  way 
the  defendant  wroncffullv  deforces  him. 


JI,*228.]  OF  THE  WRIT.  477 

12.  Although  the  writ  says,  '  who  deforceth  him  of 
the  aforesaid  advowson,'  yet  it  is  not  to  be  understood 
thereby  that  the  deforceor  is  in  seisin  of  the  advowson. 
But  the  word  '  deforce '  is  used  because  he  is  suflBciently 
ii  deforceor  who  disturbs  another  in  the  whole  or  in 
})urt,  although  he  does  not  actually  eject  him  from  the 
whole,  as  above  is  said.  From  the  points  aforesaid 
exceptions  may  be  drawn  either  wholly  to  destroy  the 
assise  or  to  delay  it. 


CHAPTER  lY. 

Of  Exceptions  independent  of  the  WHt. 

1.  Although  the  disturbor  admits  all  the  articles  of 
the  writ,  yet  he  may  except  against  the  assise,  and  say, 
that,  whereas  the  plaintiff  counts  of  the  seisin  and 
presentation  of  his  ancestors,  he  wrongfully  complains, 
because  after  his  own  presentation,  he  granted  to  this 
same  disturbor  or  to  one  of  his  ancestors  a  tenement 
to  which  the  advowson  was  appendant,  and  that  by 
such  a  charter ;  and  therefore,  although  the  plaintiff  or 
any  of  his  ancestors  did  present,  yet  he  ought  not  to 
])resent  on  account  of  the  aforesaid  deed. 

*2.  If,  then,  the  plaintiff  is  of  full  age,  he  may 
acknowledge  the  charter  and  admit  the  gift,  and  say 
in  answer  to  the  exception,  that  after  the  making  of 
such  gift  he  presented  such  an  one  by  name,  who  was 
admitted  on  his  presentation,  whereby  the  gift  is  null 
and  the  charter  void.     And  if  this  be  proved  or  not 


478  BRITTOK  [II,  *228. 

denied,  there  is  an  end  to  the  exception,^  unless  the 
deforceor  can  say  that  although  that  charter  be  void 
and  the  gift  null  for  the  last  presentation  of  the  donor, 
yet  after  such  presentation  this  same  plaintiff  or  his 
ancestor  made  a  new  gift  and  a  new  charter  to  him, 
whereby  the  presentation  belongs  to  him.  Or  he  may 
say  that  the  plaintiff  confirmed  the  first  charter  to  him, 
and  so  that  which  was  before  weakened  by  want  of 
seisin  he  did  afterwards  strengthen  by  confirmation  ; 
and  if  this  be  verified  or  not  denied,  the  assise  shall 
fall,  unless  the  plaintiff  can  aver  a  later  presentation. 
Or  he  may  grant  that  the  presentation  was  so  made 
by  the  plaintiff  or  his  ancestor  after  the  gift  and  after 
the  making  of  the  charter  ;  but  he  may  say  that  he 
purchased  out  against  him  a  writ  of  warranty  of 
charter,  upon  which  the  plaintiff  w^as  summoned,  and 

^  '  A  gives  a  manor  with  the  advowson  of  a  church  to  B ;  A 
dies.  C,  son  and  heir  of  A.  is  under  age,  and  in  ward  of  D. 
The  church  avoids.  D  presents  in  right  of  wardship,  and  his 
clerk  is  admitted  and  instituted.  When  C  is  of  age,  the  parson 
dies.  C  presents,  and  B,  tlie  purchaser,  presents  also.  C  brings 
assise.  B,  the  disturber,  alleges  his  purchase.  C  replies  of  the 
continuance  of  seisin  by  the  last  presentation.  Qncestio,  quit 
fiet.  Solutio.  C  shall  recover,  and  B  take  nothing ;  because 
purchase  without  fine  levied  is  invalid  (riens  ne  valt)  without 
seisin.  Contra.  Induction  of  seisin  of  the  principal  substance 
(del  gros  e  del  principal),  to  wliich  the  appui'tenances  are  aj)- 
pendant  and  accessory,  suffices  for  seisin  of  both.  But  the  glebe 
is  a  principal  substance  to  which  the  advowson  is  appendant  and 
accessory  ;  therefore  the  induction  of  seisin  of  the  glebe  is  suffi- 
cient for  the  principal  and  for  the  accessory.'  (Note  in  MS.  N.) 
See  before,  p.  173,  note. 


II,  *228  k]  OF  THE  WRIT.  47^ 

in  our  court  acknowledged  the  charter  to  be  his  deed, 
and  allowed  the  gift,  so  that  a  fine  was  levied,  and  a 
chirograph  made  ;  and  thus  the  plea  shall  be  ended. 

3.  In  order  to  see  this  matter  clearly,  let  us  suppose 
that  one  has  granted  to  another  a  manor,  with  the 
advowson  of  a  church,  to  him  and  his  heirs  in  fee,  and 
before  the  church  ^becomes  void  the  purchaser  gives  the 
same  manor  with  the  advowson  to  another;  then  the 
parson  of  the  first  donor  dies,  and  the  former  purchaser 
presents,  and  the  latter  also.  The  first  purchaser  has 
no  right,  inasmuch  as  he  Avas  never  seised  ;  neither 
has  the  latter  any  right,  for  no  one  could  give  a  thing 
which  he  had  not ;  so  that  the  right  of  presentation 
must  of  necessity  remain  with  the  first  donor,  who 
always  continued  in  possession  of  the  right  of  presenta- 
tion, inasmuch  as  the  purchaser  aliened  his  right  before 
seisin,  that  is  to  say,  before  he  presented. ^  And  the 
same  reason  holds  in  case  of  several  alienors. 

^  '  If  one  purchase  a  tenement  to  which  an  advowson  is  ap- 
pendant, and  alien  the  tenement  before  he  has  presented  to  the 
church,  the  second  purchaser  hath  lost  for  ever  his  action  to  i-e- 
cover  the  advowson  by  reason  of  his  purchase.  Probatio  hvjns. 
Feoflfor  cannot  make  liigher  estate  to  his  feoffee  than  he  himself 
had  ;  but  the  feoffor  had  no  estate  in  the  advowson.  Therefore 
he  could  make  none.  Contra.  Seisin  of  principal  is  seisin  of 
accessory  ;  but  the  purcliaser,  by  means  of  the  glebe,  takes  seisin 
of  the  principal ;  therefore  of  the  accessory.  Resjjonsio.  Seisin 
cannot  be  taken  more  largely  than  it  is  delivered,  but  seisin  was 
never  delivered  of  the  advowson  ;  therefore  it  could  not  be  taken. 
Solutio.  There  are  some  appurtenances  which  may  be  severed 
by  the  owner  ;  as  a  garden  belongs  to  a  house,  but  if  the  owner 
gives  the  hoiise  with  its  appurtenances,  retaining  the  garden, 


480  BRITTON.  [II,  *229. 

4.  For  if  the  last  purchaser  could  in  any  way  vouch 
his  feoffor  to  warranty,  it  would  not  avail  him,  because 
the  warrant  was  never  seised.  For  no  one  is  bound 
to  defend  any  other  in  his  seisin,  except  him  who  is 
found  in  possession  ;  ^  and  if  the  vouchee  should  war- 
rant to  him  in  fact, — since  in  law  he  would  not  be 
bound  to  do  so, — and  should  himself  vouch  the  first 
alienor,  the  latter  would  not  be  bound  to  warranty, 
and  this  for  two  reasons ;  first,  because  the  vouchor 
is  not  in  seisin  ;  and,  secondl}',  because  the  last  pur- 
chaser cannot  claim  or  have  again  what  he  never  luul 
or  could  have.  And  although  the  first  alienor  confirm 
the  gift  to  the  first  purchaser,^  *yet  the  last  purchase 
is  not  thereby  strengthened,  since  that  gift  is  not  the 

"there  are  two  principal  matters  wliere  before  there  was  but  one 
(sunt  deuz  gros  qe  avant  ne  furent  fors  qe  tin  gros).  So  in  the 
former  case  (Auxi  par  decha);  the  donor  aliened  tlie  land  witli 
the  advowson,  but  retained  the  advowson  by  tlie  presentation 
after  the  gift  ;  as,  if  I  enfeoff  you  of  two  acres,  and  continue  in 
seisin  of  one,  the  charter  is  void  as  to  that  acre.  But  if  he  who 
purchased  the  land  with  the  advowson  had  not  aliened  the  land, 
but  had  presented  in  time  of  avoidance,  and  had  been  disturbed 
by  his  feoffor  or  other,  and  liad  proceeded  by  law,  he  might  have 
i-ecovered  the  advowson.  But  since  he  did  not  do  so,  the  right 
remains  with  the  donor.  Et  sic  nota,  quod  actio  alienari  non 
potest.'     (Note  in  MS.  iV.) 

1  The  text  here  is  ambiguous,  and  the  previous  sentence  might 
seem  to  show  celt  to  be  used  in  the  nominative  case.  But  the 
meaning  .is  shown  by  the  parallel  places  of  Bracton  and  Fleta. 

•^  The  sense  appears  to  require  '  last  purchaser  ; '  compare  Brae. 
243,  Fie.  324  (§2). 


II,  *229.]  OF  THE  WRIT.  481 

deed  of  the  confirmor  or  any  of  his  ancestors,  and 
because  the  gift  itself  was  never  of  any  effect.  And 
therefore  if  the  first  donor  presents,  and  the  last  pur- 
chaser also  presents,  whether  he  has  a  confinnation  of 
his  purchase  or  not,  the  seisin  shall  be  awarded  by  the 
iissise  to  the  confirmor  on  accourtt  of  the  seisin  from 
which  he  never  parted,  since  it  never  began  to  attach 
anywhere  else. 

5.  But  where  the  last  purchaser  in  fact  presents  a  clerk, 
who  is  admitted  on  his  presentation,  and  then  it  is  aliened 
from  hand  to  hand,  each  purchaser  being  in  seisin  of  the 
presentation,  and  upon  the  avoidance  of  the  church,  both 
the  first  donor  and  the  last  purchaser  present,  if  both 
bring  this  assise,  let  the  assise  be  first  taken  of  the  last 
seisin,  and  let  no  assise  upon  assise  be  afterwards  taken, 
but  let  the  first  donor  proceed  by  writ  of  right  upon  the 
property,  if  he  thinks  fit  to  do  so  ;  and  ho  ma}'  impute 
it  to  his  own  negligence  that  he  has  lost  his  recovery 
in  the  possession. 

6.  If  a  charter  produced  against  this  assise  is  denied, 
let  it  be  proved  by  the  witnesses  therein  named,  and  by 
the  assise  taken  in  the  manner  of  a  jury,  unless  he 
against  whom  it  is  proffered  is  under  age ;  for  an  infant 
in  that  condition  cannot  answer  to  any  chartei- ;  but  to  a 
fine  or  other  recognisance  made  *by  his  ancestor  every 
heir,  of  whatever  age  he  may  be,  shall  answer.^  In 
case  of  nonage,  the  assise  shall  be  put  off  until  age ;  but 
by  advice  of  our  court  an  annual  pension  shall  be  provided 

1  '  Carta  dedici  poterit,  finis  vero  dedici  non  poterit  ;    unde 
mirror  ad  fineni  respondere  oogetur.'     (Note  in  MS.  N.) 
31 


482  BKITTOK  [II,  *229  h. 

for  such  infant,  to  be  taken  until  he  is  of  age.  But  if 
no  charter  is  produoetl,  the  assise  shall  run  forthwith, 
although  one  of  the  parties  be  under  age.  So  where  a 
fine  or  other  recognisance  made  by  the  ancestor  of  any 
of  the  parties  is  vouched,  tlie  assise  shall  not  be  stayed 
by  reason  of  the  nonage  of  the  heir. 

7.  If  a  charter  only  of  an  ancestor  is  produced,  and 
the  same  is  denied,  let  it  be  proved ;  and  if  it  is  ad- 
mitted, but  is  objected  against  it  that  it  is  void  and  of 
no  force  by  reason  of  the  subsequent  presentation,  and 
the  adverse  party  denies  that  there  Avas  any  such 
presentation  after  the  making  of  the  charter,  let  the 
assise  forthwith  run  in  manner  of  a  jury  by  the  consent 
of  the  parties  upon  this  question,  whether  the  donor  who 
brings  the  assise  presented  to  the  church,  after  he  made 
the  gift  to  such  an  one  ,  which  the  charter  witnesseth, 
or  not. 

8.  Again,  it  may  be  answered  to  the  assise,  that  it 
ought  not  to  pass,  because  he  who  brings  the  assise,  or 
some  of  his  ancestors,  gave  and  aliened  to  the  other 
party,  or  to  some  of  his  ancestors,  the  whole  of  tlie 
tenement  in  right  whereof  he  has  presented,  with  all 
its  appurtenances,^  without  retaining  anything,  whether 
they  were  in  possession  of  the  presentation  or  not,  and 
without  any  exception  or   condition,  or  without  any 

1  '  Nota  quod  unum  est  dicere,  Do  tibi  cum  pertinentiis,  et 
aliud,  cum  omnibus  pertinentiis,  vel,  cum  pertinentiis  sine  ullo 
retenemento  ;  quia  per  lioc  quod  dico,  cum  pertinentiis,  aliqua^ 
possunt  pertinentlse  transniutari,  et  aliquae  retineri.'  (Note  in 
MS.  N.) 


II,  *230.]  OF  THE  WRIT.  483 

lease  for  term  of  life  or  years.^  And  this  allegation 
may  sometimes  be  manifested  by  charter  and  by  writ- 
ings, which  being  produced  in  court,  the  assise  shall 
proceod,  and  if  any  of  them  be  denied,  averment  shall 
lie  by  the  assise  taken  in  form  of  jury,  if  the  parties  con- 
sent thereto.  Charter  must  always  be  produced  be- 
fore judgment  given  ;  for  afterwards  they  are  not 
admissible,  except  in  certifications  and  attaints. 

9.  Again ,  it  may  be  excepted  against  the  assise,  that  he 
who  brings  it  hath  not  in  hand  any  tenement  to  which 
the  advowson  was  ever  appurtenant,  inasmuch  as  he 
lost  such  tenement  by  judgment,  or  by  disseisin,^  or  in 
some  other  way,  and  therefore,  even  if  he  has  a  right 
in  the  tenement  and  in  its  appurtenances,  yet  he  ought 
first  to  recover  the  tenement  to  which  the  advowson  be- 
longs, which  is  the  principal  subject,  before  he  has  any 
ground  for  presenting.  And  upon  his  point  it  is  said 
that,  if  any  one  has  once  recovered  the  presentation  of 

^  The  sense  requires,  '  or  leased  it  for  term  of  life  or  years  ; ' 
compare  Bract.  243,  and  Fie.  325  (§  2). 

2  '  A  man  inherits  a  manor  to  which  an  advowson  is  append- 
ant ;  and  is  disseised  of  the  entire  manor.  The  church  avoids. 
The  disseisee  and  disseisor  both  present.  The  disseisee  brings 
assise,  and  the  disseisor  Quare  impedit.  The  disseisor  shall  re- 
cover. Contra.  The  disseisor  ought  not  to  be  in  a  better  condi- 
tion than  a  purchaser,  but  if  a  purchaser  had  purchased  the 
manor  with  the  appurtenances,  without  special  mention  of  the 
advowson,  the  advowson  had  remained  with  the  donor ;  with 
much  stronger  reason  should  it  remain  with  the  disseisee.  Re- 
sponsio.  True  it  is,  the  disseisor  is  in  a  better  condition  quoad 
hoc'     (Note  in  MS.  N.) 


484  BRITTON.  [II,  *230  h. 

a  church  by  this  assise,  and  there  is  another  liaving  a 
greater  right  to  it  who  demands  the  advowson,  or  the 
tenement  to  which  the  advowson  belongs,  by  writ  of 
right,  and  pending  the  plea  the  parson  dies,  still  the 
plaintiff  has  no  right  to  present  before  he  hasderaigned 
the  advowson  or  the  tenement  in  the  plea  of  right, 

10.  The  party  may  also  except  against  the  assise, 
that  neither  he  who  brings  it  nor  any  of  his  ancestors 
ever  had  any  *rightin  the  advowson  except  for  term  of 
life  or  other  term  which  is  passed.  And  if  any  woman 
after  the  decease  of  her  husband  disturbs  the  presenta- 
tion of  the  heir,  who  is  warrant  of  her  dower,  and  al- 
leges that  the  presentation  belongs  to  her  by  reason  of 
her  dower  which  she  has  in  the  same  vill  where  tlie 
church  is  situate,  thereupon  purchases  a  writ  of  Quare 
im/pedit  against  tlie  same  warrant,  care  must  be  taken 
to  observe  in  what  manner  her  dower  was  assigned  to 
her.  For  if  she  has  the  third  part  of  a  vill  with  the  ap- 
purtenances in  dower,  and  in  virtue  of  this  dower  claims 
the  third  presentation,  the  claim  cannot  be  allowed, 
unless  she  has  some  specialty  which  makes  mention 
thereof,  as  where  the  advowson  has  been  assigned  to  her 
in  her  third  part  ;  for  otherwise  she  cannot  claim  or 
challenge  anything,  although  the  church  be  situate  in 
her  third.  And  if  she  is  endowed  of  the  whole  vill 
entirely,  with  all  the  appurtenances  without  any 
exception,  than  she  has  a  right ;  but  if  the  advowson  be 
excepted,  she  has  no  right. 

11.  If  the  bishop  is  asked  to  admit  any  clerk  to  a 
presentation  by  parcels,  as  where  a  manor,  to   which 


II,  *231.]  OF  THE  WRIT.  485 

the  advowson  of  some  church  is  appendant,  is  aliene<l 
by  parcels  to  divers  tenants,  each  of  whom  is  enfeoffed 
of  his  portion  with  the  appurtenances,  and  all  the 
tenants  severally  present  to  the  church,  when  it  becomes 
void,  the  presentation  of  the  ^tenant  of  the  last  remain- 
ing parcel  is  to  be  taken,  as  before  is  mentioned.  For 
in  such  case  theadvowson,  not  being  expressly  aliened, 
always  remains  with  the  portion  retained. 

12.  If  one  presents  to  a  church,  and  such  presentee  is 
admitted,  and  another  person  raises  a  dispute  by  some 
other  clerk,  and  it  is  afterwards  agreed  between  the 
presentors  that  he  who  raised  the  dispute  shall  de facto 
a  second  time  present  to  the  bishop  the  clerk  already 
instituted,  and  the  bishop  thereupon  admits  him  in 
prejudice  of  the  right  of  the  first  presentor,  and  so  this 
clerk  remains  instituted  all  his  lifetime,  having  been 
twice  presented  and  twice  instituted,  and  if  upon  a  new 
avoidance  the  person  w^ho  presented  last  desires  to 
proceed  by  this  assise,  he  ought  not  to  be  heard.  For 
presentation  upon  presentation  at  one  turn  and  one 
avoidance  is  of  no  force. 

13.  If  any. one  presents  to  a  church,  and  before  the 
presentee  is  admitted,  the  presentor  pending  the  pre- 
sentation dies,  and  the  guardian  of  the  heir  by  reason  of 
the  nonage  of  the  heir  and  in  right  of  the  w^ardship 
presents  another  clerk,  and  during  the  litigation  be- 
tw^een  the  clerks  thus  presented  the  heir  becomes  of 
full  age,  and  presents  a  third  clerk  ;  in  such  case  the 
presentee  of  the  heir  is  to  be  admitted  to  the 
church. 


486  BRITTON.  [II,  *231  h. 

14.  If  a  woman  endowed  of  an  advowson  presents 
her  clerk,  who  is  admitted,  and  the  heir  who  is  the 
warrant  of  her  dower  makes  a  gift  of  the  advowson  in 
the  lifetime  of  the  widow  ;  and  before  the  ^purchaser 
has  seisin  of  the  advowson  by  presentation  the  widow 
dies,  so  that  the  dower  falls  into  the  hands  of  the  rijrht 
heir  ;  in  such  case  the  purchaser  must  get  his  purchase 
renewed  or  confirmed;  for  until  he  can  allege  seisin, 
he  can  never  plead  in  the  property. 

15.  If  there  are  several  parceners  and  heirs,  some  of 
whom  are  under  age  and  others  of  full  age,  and  some 
in  seisin  of  their  inheritance  by  their  guardians  and 
some  in  their  own  names,  and  there  is  only  one  church 
vacant,  all  ought  to  present  thereto  jointly,  and  to 
consent  in  one  clerk ;  othewise  the  presentation  shall 
not  take  place  so  long  as  they  disagree,  and  the  bishop 
when  the  time  comes  shall  dispose  of  the  church.  But 
if  all  are  of  age,  and  every  one  knows  his  several  share, 
then  the  presentation  shall  go  according  as  they  shall 
agree  in  the  partition.  Neither  does  the  collation 
belong  to  the  bishop  if  every  such  parcener  severally 
])resents  his  clerk,  when  they  are  all  of  age  and  have 
made  partition  of  their  inheritance,^  because  in  such 
case  the  bishop  could  not  admit  the  clerk  of  one  with- 
out prejudice  to  the  other  parceners.  But  it  might  be 
otherwise,  if  one  single  person    who  had   the   entire 

1  This  clause,  '  wlieu  they  are  all,'  &c.,  appears  to  have  slipped 
into  the  text  by  mistake.  The  sense  intended  appears  to  be,  that 
where  of  several  parceners  each  presents  his  own  clerk,  the 
bishop  is  not  entitled  to  make  his  choice. 


n,  *232.]  OF  THE  WHIT.  487 

right  of  presentation  presented  two  or  more  clerks  at 
once,  or  one  after  the  other. 

*16.  Whereas  in  respect  of  one  avoidance  and  of  the 
presentation  to  one  church  several  persons  may  be 
plaintiffs  upon  different  grounds,  for  two  or  more  may 
complain  and  bring  this  assise,  and  demand  the  pre- 
sentation  by  title  of  succession  as  of  the  seisin  of  tlieir 
-ancestors,  or  of  their  own  presentation  and  a  widow 
endowed,  or  several  widows,  in  right  of  their  dower,  or 
of  any  manner  of  term  of  life  or  years  according  to  the 
different  kinds  of  tenures,  either  by  writ  of  Quare  Im- 
fedit  or  Quare  non  permittit,  or  by  reason  that  such 
a  wndow  holds  part  of  the  vill  where  the  church  is 
situate,  and  therefore  might  present  in  turn,  and  upon 
several  other  grounds, — all  these  reasons  should  be 
carefully  examined  in  proper  order,  so  that  it  may  bo 
ascertained  who  has  a  right  to  the  action  and  who 
not ;  and  in  the  letters  to  be  directed  to  the  bishop 
mention  should  be  made  of  the  proceedings  in  the  case 
of  person. 

17.  When  a  widow  in  right  of  her  dower  has  pre- 
sented to  any  church,  and  her  clerk  is  admitted  by  the 
bishop,  and  the  heir,  who  is  the  warrant  of  her  dower, 
afterwards  grants  away  the  advowson,  and  the  church 
being  again  void  in  the  lifetime  of  the  widow  she 
presents  again,  if  her  clerk  is  admitted,  the  right  of 
presentation  is  thereby  reserved  to  the  heir  and  to  his 
heirs  ;  and  the  grant  will  be  ineffectual,  and  the  charter 
void  for  want  of  seisin. 

18.  When  any  one  says,  by  way  of  defence  to  this 


488  BKITTOK  [II,  *232  h, 

assise,  that  he  who  brings  it  cannot  present  by  reason 
of  a  gift  and  feoffment,  and  thereupon  shows  a  charter^ 
if  the  charter  and  feoffment  cannot  be  denied,  the  as- 
sise is  at  an  end,  and  the  other  shall  retain  his  seisin^ 
when  he  is  thus  as  it  were  in  seisin  after  the  gift  and 
making  of  the  charter.  *And  if  the  charter  and  gift 
are  denied,  let  them  be  proved ;  and  if  they  are 
proved,  the  plaintiff  cannot  further  hinder  the  pre- 
sentation. And  if  the  donor  acknowledge  the  char- 
ter and  the  gift,  and  say  that  he  afterwartl* 
presented,  as  aforesaid,  let  this  be  inquired  by 
the  assise,  for  his  bare  allegation  is  not  lo  be  believed, 
nor  any  presumption  alone,  although  he  should 
produce  in  evidence  the  letters  patent  of  the  bishop  of 
the  diocese  testifying  that  he  admitted  his  clei'k  to  that 
church.  Nor  need  the  assise  in  this  case  inquire  con- 
cerning the  seisin  of  the  donor  ;  for  by  acknowledging 
the  charter  he  has  barred  himself  from  the  seisin  and 
from  his  presentation,  when  he  is  unable  to  show  that 
he  has  presented  after  his  gift  or  after  the  making  of 
the  charter. 

19.  When  the  plaintiff  counts  of  his  own  seisin  or  of 
that  of  his  ancestors,  and  says  that  he  presented  a  certain 
parson,  who  was  admitted,  and  thereof  puts  himself 
upon  the  jurors  of  the  assise,  if  the  jurors  say  that 
they  do  not  know  who  presented  the  last  parson,  or 
the  one  before  him,  or  if  they  say  that  they  absolutely 
know  nothing  thereof,  in  such  case  let  the  plaintiff 
take  nothing,  but  remain  in  mercy .^     So,  if  in  one  vill 

1  Bracton  cites  a  case  of  the  tenth  year  of  Henry  III.  to  show 


II,  *233.]  OF  THE  VERDICT.  489 

there  are  two  lords  and  diverse  fees,  and  but  one 
church,  and  the  jurors  cannot  say  who  last  presented, 
nor  in  whose  fee  the  church  is,  or  if  the  Aground  on 
which  the  church  is  built  is  common  to  both  parties,  in 
such  case  the  parties  must  be  told  to  agree  upon  a  par- 
son,i  or  neither  of  them  will  take  anything,  but  the 
plaintiff  shall  remain  in  mercy,  not  for  want  of  right, 
but  for  want  of  proving  his  right. 


CHAPTER  V. 

Of  the  Verdict  and  Judgment  in  Assise  of  Last 
Presentation. 

1.  When  the  jurors  are  present  in  court,  and  the 
parties  have  pleaded  to  the  assise,  if  the  jurors  are  not 
rejected  by  the  challenges  of  the  parties,  they  shall 
swear  one  after  the  other  thus :  '  Hear  this,  ye  Jus- 
tices, that  I  will  speak  the  truth  concerning  this  assise 
of  the  church  (or  of  the  chapel),  whereof  by  the  king's 
precept  I  have  made  the  view,  and  that  1  will  not  fail 
for  anything  to  speak  the  truth,  so  help  me  God  and 
the  Saints.'  Then  let  the  writ  be  rehearsed  to  them, 
and  the  manner  in  which  the  parties  have  pleaded,  so 
far  as  necessary. 

that  in  the  above  circumstances  the  parties  without  further  writ 
might  proceed  upon  the  proprietary  right,  whicli  would  be  tried 
by  battle  or  the  great  assise. 

^  Bracton  says  they  should  agree  to  present  alternately. 


490  BRITTON.  [II,  *233. 

2.  When  the  jurors  have  spoken  together,  and  are 
agreed  in  their  verdict,  they  may  say  that  t)ie  plaintiff 
presented  the  last  parson,  who  is  dead,  to  the  aforesaid 
church  in  time  of  peace,  to  wit,  such  a  clerk  by  name, 
who  last  died  parson  in  the  same  church  ;  or  they  may 
say,  on  the  other  hand,  that  he  did  not  present  the 
last  clerk,  but  that  another,  such  an  one  by  name,  did 
so  ;  or  they  may  give  all  the  reasons  which  the  defor- 
ceor himself  might  allege,  if  he  were  present,  why  the 
presentation  does  not  belong  to  the  pkiintiff,  and  show 
that  the  other  does  not  wrongfully  deforce  him,  as 
where  the  plaintiff  or  his  ancestor  after  the  last  pre- 
sentation aliened  the  advowson  in  some  manner  in  fee 
or  for  a  term. 

3.  It  is  not  sufficient  for  the  jurors  to  say  merely 
that  the  plaintiff  or  his  ancestor  presented  last,  but 
they  must  also  declare  how  the  deforceor  has  wrong- 
fully disturbed  the  presentation.  Likewise,  it  is  not 
enough  to  say  '  wrongfully,'  without  saying  that  the 
wrong  was  done  to  him  who  complains,  since  this 
must  appear  before  the  plaintiff  can  take  anything  by 
this  assise,  however  useful  the  verdict  might  be  to  an- 
other person  having  the  right.  Or  they  may  say  that 
they  know  nothing  of  the  fact ;  and  then  they  must 
inquire  who  presented  the  next  parson  before,  and  so 
from  parson  to  parson  as  long  as  the  limited  time  per- 
mits. 

4.  If  the  jurors  say  that  the  plaintiff  presented,  then 
judgment  shall  pass  for  him  ;  and  if  they  say  that  his 
ancestors  presented  the  last  parson  but  one ,  but  they 


II,  *233.]  OF  THE  VERDICT.  491 

know  not  who  presented  the  parson  who  died  last,  still 
let  judgment  be  given  for  the  plaintiff,  unless  there  is 
any  reason  to  exclude  the  Justices  from  the  presump- 
tion that  the  plaintiff,  who  is  right  heir  to  him  who 
last  presented,  has  the  mere  right  by  title  of  succession 
But  if  the  presentation  was  made  before  the  time 
limited  in  a  plea  of  Mortdancester,  the  assise  falls  ;  and 
let  the  plaintiff  proceed  by  writ  of  right,  if  he  thinks 
fit  to  do  it.  And  if  the  jurors  are  undecided  and  in 
doubt,  then  let  the  seisin  remain  where  it  is,  and  the 
plaintiff  in  mercy.  The  like  Avhere  the  jurors  have  no 
knowledge  of  the  person  of  the  plaintiff,  or  although 
they  have  some  knowledge  of  him,  yet  they  do  not 
know  for  certain  whether  he  is  tlie  next  heir  of  the 
ancestor  who  last  presented  or  not. 

5.  If  any  one  has  once  recovered  seisin  of  a  presenta- 
tion by  this  assise,  and  he  against  whom  he  has  recov- 
ered proceeds  to  demand  the  advowson  by  writ  of 
right,  and  pending  the  plea  the  church  becomes  void, 
and  both  of  them  present,  the  presentee  of  the  person 
who  recovered  by  the  assise  ought  to  be  admitted, 
saving  to  the  plaintiff  his  right  in  the  property. 


492  BRITTON.  [II,  *233  b. 


CHAPTER  VI. 

Of  the  Action  of  the  Quare  impedit. 

1.  Not  all  those  to  whom  an  advowson  belongs  have 
an  action  to  demand  it  by  the  assise  of  last  presentation, 
either  in  virtue  of  their  own  presentation  or  of  the 
seisin  of  their  ancestors,  as  hath  been  explained  in 
treating  of  the  assise  of  last  presentation.  For  there^ 
are  some  who  purchase  advowsons  of  churches  and  a 
right  to  present  bj  good  titles,  as  by  title  of  gift  in  fee  or 
for  a  term,  or  by  judgment  in  our  court ;  also  by  dissei- 
sins and  by  intrusions  in  the  tenements  to  which  the 
advowsons  are  annexed,  and  in  many  other  ways, 
whereby  if  such  churches  become  void,  and  the  pur- 
chasers present  thereto  and  are  disturbed,  tlie}^  can 
have  no  remedy  by  the  aforsaid  assise.  For  the  writ 
of  last  presentation  is  a  Avrit  of  possession,  and  such 
purchasers  cannot  count  of  their  possession.  And 
therefore  the  wYii  of  Quare  imfedit  was  ])rovided  as  a 
remedy  for  such  purchasers;  which  writ  is  pleadable 
by  summons,  attachments  and  distress. 

*2.  The  force  of  this  writ  lies  wlioily  in  the  trespass 
of  the  tortious  disturbance.  Therefore  wliere  any  one 
having  a  right  to  present  by  a  good  title  desires  to 
present,  ami  another  who  has  less  right  interposes  a 
disturbance   by  presenting   another   clerk    or  in   any 


II,  *233 1.-]        OF  QUARE  IMPEDIT.  493 

other  manner,  if  he  who  is  thus  disturbed  cannot  count 
of  his  own  seisin  or  of  the  seisin  of  his  ancestor,  then 
this  writ  of  Quare  impedit  properly  lies,  which  is  as 
much  as  to  say,  wherefore  the  disturbor  wrongfully 
sets  his  foot  in  that  right  wliich  the  })laintiff  has  in  the 
presentation,  and  whereof,  although  he  was  never 
fully  seised  of  the  possessory  right,  he  is  seised  of  the 
property  by  title  of  good  purchase  ;  and  therefore  the 
disturbing  him  is  equivalent  to  ejecting  him  from  the 
Avhole,  and  is  equally  injurious ;  and  thus  remedy  lies 
by  this  writ. 

3.  But  if  the  plaintiff  presentor  has  no  sort  of  seisin 
either  of  the  possessory  right  or  of  the  property  by 
any  colour  of  tenure  of  tenement,  or  other  title  in  his 
right,  there  can  be  no  setting  foot  wrongfully,  be- 
cause he  has  no  right  upon  which  a  man  can  set  his 
foot  either  rightfully  or  Avrongfully  ;  and  in  this  case 
the  writ  of  Quere  impedit  does  not  properly  lie,  but 
that  of  Quod permittat.  This  writ  of  Quod permittat 
also  lies  in  the  person  of  a  purchaser  against  his 
feoffor,  if  he  disturbs  him  in  using  his  seisin  of  the 
advowson  which  he  has  given  to  him.^ 

"^  The  above  section  is  a  perverted  pai'aphrase  of  Biacton , 
whose  text,  as  printed,  is  somewhat  obscure,  but  appears  to 
mean,  that  where  the  plaintiff  had  not  had  seisin  and  did  not 
(ilaim  property,  but  only  an  usufructuary  or  possessory  right, 
his  remedy  was  by  Quare  non  permittit ;  so  that  if  the  plaintiff 
or  his  ancestor  had  had  actual  seisin  by  a  former  presentation, 
his  remedy  was  by  assise  of  Darreign  presentment ;  if  he  claimed 
the  advowson,  and  had  not  had  seisin  by  himself  or  his  ancestor. 


494  BKITTOK  [II,  *234. 

4.  When  the  parties  have  appeared  in  court,  the 
*disturbor  may  say  that  he  has  a  right  to  disturb  the 
plaintiff,  by  reason  that  he  and  his  ancestors  have 
always  presented,  so  that  he  is  seised  both  of  the  one 
right  and  the  other.  Or  he  may  say  that  he  has  not 
wrongfull}'^  disturbed,  because  he  holds  the  tenement, 
to  which  the  advowson  is  appendant,  with  all  its  ap- 
purtenances, by  sale  of  the  plaintiff  or  his  ancestor,  or 
by  some  other  title,  as  by  release,  quitclaim,  or  other- 
wise. 

5.  And  when  any  one,  who  has  lost  the  right  to  the 
presentation  by  judgment,  or  any  other  person  who 
has  not  any  right  presents,  and  causes  the  clerk  who 
has  already  been  instituted  to  be  summoned  to  answer 
why  he  disturbs  the  plaintiff  from  presenting,  the  clerk 
may  say  that  the  plaintiff  ought  not  to  present  save  in 
time  of  vacation,  and  that  the  church  is  full  and  pro- 
vided, wherefore  he  ought  not  now  immediately  to 
present.  And  if  the  plaintiff  say,  that  the  church  is 
void,  the  court  shall  be  certified  thereof  by  the  or- 
dinary of  the  place ;  and  according  to  the  bishop's 
return  the  plea  shall  be  determined. 

6.  One  clerk  may  wrongfully  molest  another  after 
he  has  been  instituted,  and  after  his  patron  has  made 
good  his  right  of  presentation  by  judgment  of  our 
court.  And  because  such  molestation  is  prejudicial  to 
our  dignity,  and  tends  to  defeat  that   which  has  been 

liis  remedy  was  by  Quare  impedit ;  if  he  claimed  only  a  posses- 
sory right  as  tenant  in  dower  or  by  the  curtesy,  his  remedy  was 
by  Quare  nonpermittit.    See  before,  c.  4.  s.  16. 


U,*2Mh.]  OF  QITAEE  IMPEDIT.  495 

legally  done  in  our  court,  we  will  that  such  as  are  so 
troubled  be  aided  by  us  and  by  our  prohibitions,  and 
by  attachments  in  pursuance  thereof,  as  well  to  the 
judges,  that  they  hold  not  such  plea,  as  to  the  parties, 
that  they  do  not  prosecute  the  same, 

7.  The  bishop  also  pending  the  plea  in  our  court 
may  wrongfully  incumber  the  churcli  by  his  clerk 
within  the  six  months.  *Therefore  if  an\'  one  be  ap- 
prehensive of  this,  let  him  purchase  our  writ  of  pro- 
hibition to  the  bishop  that  he  do  no  such  thing,  or  that 
he  do  not  admit  any  clerk  upon  the  presentation  of 
any  until  the  plea  pending  in  our  court  be  concluded, 
and  in  particular  within  the  period  of  six  montlis  ;  ^ 

And  if  the  bishop  acts  contrary  to  our  prohibition, 
an  attachment  presently  follows.  And  if  he  does  not 
admit  the  clerks  presented  pursuant  to  our  mandate, 
let  him  be  immediately  summoned  to  answer  why  he 
has  not  done  so. 

1  These  words,  wliicli  are  derived  from  Bracton  or  Fleta,  seem 
to  imply  some  uncertainty  as  to  the  bisliop's  right  to  present  by 
lapse  where  the  suit  is  undetermined  at  the  end  of  the  six  months. 
It  has  been  held  in  later  times,  that  if  he  is  not  a  party  to  the 
action  of  Quare  impedit,  he  may  present  by  lapse.  Consequently 
it  is  now  the  universal  practice  to  make  the  bishop  a  party.  See 
Lancaster  v.  Lowe,  Croke's  Reports,  t.  Jac.  93 ;  Blackstone's 
Comm.  vol.  iii.  p.  247.  '  The  bishop  shall  present  in  all  cases, 
where  there  is  disturbance  and  the  king  does  not  write  to  the 
bishop  to  certify  him  of  tlie  right  patron  within  the  term  of  six 
months.  Wliich  may  be  for  diverse  reasons  ;  eitlier  because  the 
court  cannot  take  cognizance  thereof  so  soon,  or  because  the 
plea  cannot  be  ended  so  soon,  or  cannot  be  ended  at  all  for  want 


496  BRITTOK  [II,  *235. 


CHAPTER  VIL 

Of  the  Assise  of  Utrurn. 

1.  The  fourth  assise  is  that  of  Vtrum,  which  par- 
takes very  much  of  both  rights,  because  both  are  deter- 
mined by  it.  For  after  judgment  in  this  assise  there 
is  no  recovery  except  sometimes  by  attaint.  By  this 
assise  recognisance  is  made  whether  the  tenement, 
whereof  the  plea  is  brought,  be  the  lay  fee  of  the 
tenant  or  frankalmoigne  belonging  to  the  church  of 
the  plaintiff, — whether  the  clerk  or  the  layman  be 
plaintiff.^  For  the  assise  may  well  lie  at  the  suit  of 
either,  yet  not  of  all  clerks,  but  for  such  only  as  are 
parsons  and  rectors  of  parochial  churches  instituted 
therein  by  bishops  or  other  ordinaries,  *and  also  for 
canons  in  cathedral  churches,  and  abbots  and  priors 
who  have  churches  appro])riated  to  their  use,  and  are 
in  the  position  of  parsons;  and  this,  although  they 

of  proof  of  right;  and  jiltliougli  the  court  may  certify,  yet  the 
collation  belongeth  to  the  bishop  where  there  are  several  per- 
ceners,  and  they  cannot  agree.'     (Note  in  MS.  N.) 

1  Bracton  informs  us,  it  had  been  at  one  time  decided  tliat  tliis 
assise  could  only  be  had  upon  the  plaint  of  the  parson,  but  its 
extension  was  considered  advisable,  as  it  offered  a  means  of 
avoiding  the  delays  of  a  writ  of  right,  and  the  decision  by  battle 
or  great  assise.     Brae.  285  h. 


II,  *235.]     OF  THE  ASSISE  OF  UTRUM.  497 

liave  only  moieties  by  reuson  of  there  being  divers  fees 
and  divers  patrons,  for  which  moieties  each  patron 
may  severally  plead  and  be  impleaded  ;  tliough  it 
Avould  be  otherwise  of  a  thing  held  in  common  between 
them.  And  if  any  church  is  given  to  two  parsons  bv 
one  patron,  neither  of  them  can  plead  or  be  im])leade(l 
by  this  assise  without  the  otlier.^ 

2.  The  Writ  of  Utrum  in  favour  of  the  clerk  was 
provided  as  his  writ  of  right,  because  he  could  not 
count  by  descent  in  the  right.  Thus,  it  is  of  the  nature 
of  a  plea  of  right,  and  therefore  they  are  limited  by 
the  same  term.^  The  proceedings  in  this  writ  are 
similar  to  those  in  an  assise  of  last  presentation.  Never- 
theless the  tenant  may  vouch  to  warranty. 

1  •  There  are  sometimes  two  parsons,  or  raiore  ;  and  tliis  by 
reason  that  it  was  the  original  ordinance  of  the  first  patron,  or 
because  the  church  is  founded  upon  divers  fees,  whereof  each 
lord  is  patron  and  advocate  of  his  own  lordship.'  (Note  in  MS. 
JV.)  Half-churches,  and  smaller  fractions  of  churches,  occur 
frequently  in  Domesday-book.     Compare  before,  c.  3.  s.  8. 

2  It  was  said  by  Brumpton,  Justice,  in  the  Cornish  Iter,  30 
Edw.  I.,  that  the  right  of  action  in  this  writ  was  not  barred  by 
jirescription  of  time.     Year  Book,  30  Edw.  I.  p.  207. 

32 


498  BRITTON.  [II,  *235  5. 


CHAPTER  YIII. 

Of  Exceptions  in  the  Assise  of\J  trxxm. 

1.  The  tenant  may  aid  himself  by  his  general  and 
dilatory  exceptions.  And  if  the  layman  is  tenant,  he 
may  plead  that  the  church  was  never  seised  of  the 
tenement  demanded  :  and  that,  although  it  were  at  any 
time  seised,  yet  the  plaintiff  cannot  recover  anything 
therein,  for  he  hath  received  fealty  and  service  for  the 
same  tenement ;  and  if  this  be  verified  or  not  denied, 
*the  assise  shall  fall  at  least  for  the  parson's  life.  For 
in  this  case  the  taking  of  fealty  bars  the  action,  as  in 
other  cases  the  taking  of  homage,  because  homage  ex- 
cludes the  demesne.  The  assise  is  also  at  an  end  if  his 
predecessor  aliened  the  tenement  in  fee  to  a  layman, 
who  has  since  obtained  a  confirmation  of  the  feoffment 
from  the  bishop  of  the  diocess  and  the  patron. 

2.  The  assise  also  fails  as  to  any  kind  of  tenements 
given  to  cathedral  or  conventual  churches,  if  the  writ 
be  purchased  of  such  a  tenement,  because  such  persons 
have  the  same  remedy  as  laymen  ;  but  in  gifts  made  to 
parochial  churches  the  parsons  are  not  included,  and 
therefore  this  writ  lies  only  for  them.  In  respect  how- 
ever of  their  own  seisin,  if  they  are  ejected  or  disturbed, 
they  shall  have  remedy  by  assise  of  Novel  Disseisin  ; 
and  by  writ  of  Entrj'  upon  a  disseisin  done  to  their 


II,  *236.]  OF  UTRUM.  .4»9 

predecessor  as  long  as  the  time  will  admit.  The  assise 
likewise  fails,  if  the  tenement  be  demanded  in  demesne 
where  the  church  was  never  seised  but  of  the  seignory. 
So  in  some  cases  on  account  of  a  condition  comprised 
and  contained  in  the  feoffment  by  which  the  church 
was  enfeoffed.^ 

3,  When  a  layman  complains  against  a  clerk  who  is 
a  parson,  he  does  so  either  by  a  possessory  writ  by 
descent  from  some  ancestor  or  by  writ  of  right.  If  by 
a  possessory  writ,  then  the  process  between  them  shall 
be  the  same  as  it  would  be  between  other  persons.  If 
by  writ  of  right,  then  the  clerk  has  either  a  *warrant 
or  not.  If  he  has  a  warrant  who  will  warrant  to  him, 
let  the  proceedings  be  carried  on  between  the  demandant 
and  warrant  as  in  a  writ  of  right  by  battle  or  great 
assise  or  otherwise,  as  between  any  other  persons.  If 
he  has  no  warrant,  but  defends  the  action,  and  answers 
for  himself,  in  such  case  he  has  a  double  remedy  by 
reason  of  the  writ  of  right,  and  he  may  choose  which- 
ever he  will ;  either  he  may  put  himself  upon  a  jury, 
whether  the  land  demanded  be  frank-almoigne,  &c., 
or  lay  fee,  just  as  if  the  layman  had  brought  an  assise  ; — 
not  that  the  proprietary  cause  is  thus  turned  to  a  pos- 
sessory one,  although  the  jury  tries  and  determines 
both  rights, — or  he  may  defend  himself  by  battle  or 

*  The  nature  of  the  condition  alluded  to  is  more  fully  explained 
in  Bracton.  It  was  not  uncommon  for  a  layman  to  enfeoff  a 
church  on  condition  of  being  re-enfeoffed  to  hold  of  the  church  ; 
and  thus  to  make  the  land  feudally  subject  to  the  church  in  order 
to  obtain  its  protection.     (Brae.  286  6.) 


500  BRITTON.  [11,  *236  h. 

the  great  assise,  if  permitted  by  the  authoritx-  of  the 
ordinary  and  the  consent  of  tlie  patron. 

4.  Where  a  layman  brings  this  assise,  the  clerk  may 
answer  and  plead,  that  the  ancestor  of  the  plaintiff 
was  never  seised.  And  if  he  demands  in  demesne  what 
he  ought  to  demand  in  service,  the  assise  falls,  as  be- 
fore is  mentioned  in  the  case  of  a  plaint  by  a  clerk. 
And  if  the  tenement  was  aforetime  held  of  the  church, 
and  the  plaintiff  or  his  ancestor  forfeited  it  by  some 
judgment  of  felony,  in  such  case  the  tenement  is  es- 
cheated to  the  church,  and  the  exception  of  felony 
holds.  Again,  if  the  tenant  dies  without  heirs,  the 
tenement  will  also  escheat  to  the  church  by  reason  of 
the  mere  right,  which  takes  refuge  and  shelter  there 
■*for  want  of  finding  any  other  place  where  it  may  de- 
scend. But  if  the  church,  or  the  parson  in  its  name, 
has  received  nothing  from  the  tenement  excej^t  a  pay- 
ment by  way  of  alms,  nothing  can  thereby  escheat  to 
tiie  church. 

5.  When  the  parties  have  pleaded  to  the  assise,  or 
when  the  assise  is  awarded  by  default  of  the  tenant, 
and  re-summons  is  proved,  or  when  the  assise  is  de- 
manded by  reason  of  the  contumacy  of  the  tenant, 
liaving  been  seen  in  court  by  record  of  the  Justices,  if 
the  jurors  of  the  assise  are  present,  and  none  of  them 
is  challenged,  or,  if  the}'  be,  after  the  challenges  of  the 
parties  have  been  tried,  let  them  straightway  be  sworn 
in  these  words:  'Hear  this,  sirs  Justices,  that  I  will 
speak  the  truth  of  this  assise,  and  of  so  much  land  with 
the  appurtenances  in   IST.,  whereof  I  have  made  the 


IT,  *237.]  OF  UTRUM.  501 

view  by  the  king's  precept,  whether  the  aforesaid  land 
with  the  appurtenances  is  frank-alraoigne  belonging  to 
such  a  church,  whereof  the  plaintiff  is  parson,  or  lay 
fee  of  the  tenant'  (or  the  reverse  if  the  layman  be 
plaintiff),  '  and  will  not  upon  any  account  omit,'  &c. 
Afterwards  let  them  be  instructed  and  informed  upon 
what  point  they  are  to  certify  the  court.  And  let 
judgment  be  given  according  to  the  verdict.  And 
when  the  assise  has  once  passed  in  favour  of  the  lay- 
man after  the  manner  of  an  assise,  and  the  tenement 
is  adjudged  to  the  lay  plaintiff,  the  clerk  shall  never 
have  any  recovery  but  by  attaint,  the  form  of  which 
will  appear  in  the  following  chapter. 


*CHAPTER  IX. 

Of  the  nature  of  an  Oath,  and  of  the  process  of  Attaint, 

1,  An  oath  is  an  affirmation  or  denial  of  anything, 
whereby  a  person  is  charged  upon  peril  of  his  soul  to 
speak  the  truth ;  and  it  was  provided  on  account  of 
people  difficult  of  belief  that  oaths  should  be  taken 
upon  the  Holy  Gospels  of  God  for  avoidance  of  idolatry. 
Oaths  were  instituted  that  men  might  thereby  do  good 
service ;  for  by  means  of  an  oath  many  crimes  are 
convicted  and  punished,  and  man\'^  a  man  doth  by  an 
oath  great  good  and  great  service  to  his  neighbour.  It 
was  likewise  provided  that  one  should  swear  by  God 
and  not  by  his  creatures,  or  his  members,  to  avoid  the 
sin  of  blasphemy,  and  that  none  should  swear  but  with 
an  intention  of  doing  service  by  the  oath,  upon  nee- 


502  BRITTON.  [II,  *237  1>. 

essary  and  just  occasions.  An  oath  therefore  is  allow- 
able when  the  conscience  within  agrees  in  every  point 
with  the  lips,  without  any  addition  or  abatement ;  and 
if  there  be  any  disagreement,  it  is  perjury. 

2.  If  any  one  wilfully  perjures  himself  in  obedience 
to  his  superior,  both  of  them  are  to  be  punished  with 
the  same  penalty.  And  he  who  causes  or  procures  an- 
other to  take  an  oath  well  knowing  that  he  swears 
falsely,  as  well  as  he  who  knowinoly  admits  such  a 
false  oath,  is  in  relation  to  God  a  homicide,  althouuh 
he  do  not  kill  the  body,  but  is  partner  in  the  *felonv, 
forasmuch  as  he  knowingly  destroys  the  soul  of  hi:ii 
who  at  such  peril  takes  the  oath  ;  and  the}'^  consequently 
destroy  their  souls  who  are  consenting.  The  like  is 
true  of  him  who  is  present  and  hears  the  oath  without 
speaking  and  reprehending  it.  Perjury  is  a  lie  affirmed 
by  oath.  A  person  may  be  guilty  of  this  sin  in  three 
ways ;  first,  where  he  who  knows  or  believes  a  thing 
to  be  false  affirms  it  by  his  oath  to  be  true ;  secondly, 
where  one  is  deceived  and  thinks  a  thing  to  be  true 
which  is  false,  and  declares  it  upon  his  oath  ;  thirdlv, 
where  he  who  says  upou  his  oath  that  something  is 
true,  which  in  fact  is  so,  yet  in  his  conscience  believes 
it  to  be  false,  as  when  the  Jew  swore  that  Saint  Marv 
was  the  mother  of  the  Son  of  God.  A  lie  is  a  false 
expression  of  the  voice  with  an  intent  to  deceive  ;  and 
this  sin  is  so  ])oisonons  that  no  one  ought  to  be  willing 
to  lie,  even  to  ransom  another  person's  life. 

3.  Of  oaths  some  are  promissory  respecting  the 
future,  and  of  such  oaths  there  are  three  kinds.     The 


II,  *238.]  OF  ATTAINT.  603 

first  is  where  any  one  promises  by  an  oath  that  he  will 
do  or  assist  in  something  which  ought  not  to  be  done, 
as  feloniously  to  kill  a  man ;  and  such  an  oath  ought 
not  to  be  kept.  The  second  is  where  a  person  swears 
that  he  will  do  something  which  he  may  lawfully  do, 
and  this  solemnly,  but  without  necessity  or  reason,  and 
in  so  doing  he  is  guilty  of  sin.  The  third  kind  of  swear- 
ing is  that  which  proceeds  from  a  levity  in  talking  and 
from  a  bad  habit;  this  kind  of  swearing  is  sinful,  but 
less  so  than  the  former.  *But  of  these  three  kinds  of 
oaths  we  shall  not  speak  in  this  chapter  ;  for  they  are 
not  subject  to  any  earthly  attaint,  nor  is  an\'^  oath  ex- 
cept that  of  assertion,  which  relates  only  to  time  past  or 
present. 

4.  Therefore  if  it  happens  that  the  jurors  in  any 
])etty  assise  have  taken  a  false  oath,  they  may  on  the 
complaint  of  the  losing  party  in  the  assise  be  attainted 
in  several  ways.  Sometimes  upon  the  oaths  of  twenty- 
four  jurors,  sometimes  by  their  own  acknowledgment 
upon  examination  by  the  Justices,  and  sometimes  by 
their  repentance  and  of  their  own  free  will ;  and  in  the 
last  case  there  is  room  for  mitigation  and  mercy.  There- 
fore when  anyone  desires  to  attaint  any  jurors,  it  must 
be  seen  how  many  and  what  jurors  were  open  upon  the 
assise,  so  that  each  juror  may  have  two  attainors  at  least ; 
but  if  there  be  more,  it  is  no  harm.  It  is  also  proper  that 
they  be  of  equal  or  better  conditions  than  the  jurors.^ 

1  '  Tl»e  attainors  ought  to  be  persons  of  better  condition  than 
the  jurors ;  and  therefore  the  writ  says :  Summone  xxiiii.  milites  ; 
whereas  it  is  said  in  the  writ  of  assise  :  summone  xii.  legalea 
homines.'     (Note  in  MS.  N.) 


504  BRITTON.  [II,  *238  h, 

5.  Of  this  offence  sometimes  the  Justice  is  guilty 
and  sometimes  the  jurors.  But  whoever  is  in  fault, 
credit  must  always  be  given  to  the  enrolment  of  the 
record  of  the  Justice  until  it  be  altered  by  judgment. 
Therefore  in  the  first  place,  before  the  attainors  are 
summoned,  the  proceedings  and  record  of  the  Justice 
should  be  examined  ;  for  if  he  only  is  found  to  be  in 
fault,  it  is  not  to  be  imputed  to  the  jurors,  nor  the  re- 
verse. *Therefore  after  examination  of  the  record,  and 
not  before,  it  may  be  immediately  seen  whether  the 
assise  was  taken  as  a  jury,  or  as  an  assise.  If  it  was 
taken  by  Avay  of  jury,  then  every  one  may  have  remedy 
by  attaint ;  if  by  way  of  assise,  then  an  attaint  lies  only 
for  these  persons  and  their  heirs  wlio  were  seised  in 
their  own  names,  and  not  for  those  who  were  seised 
in  the  name  of  others,  as  villains,  termors,  bailiffs,  or 
guardians. 

6.  It  is  not  the  duty  of  all  Justices  to  take  attaints 
or  certifications.  For  it  belongs  to  those  Justices  who 
took  the  verdict  of  the  assise,  to  take  certifications,  so 
as  they  do  it  before  they  are  removed  from  their  office. 
But  it  belongs  not  to  those  Justices  who  took  the  re- 
cognisance of  the  assise  to  take  attaints  after  judgment 
given ;  because  we  have  reserved  the  amendment  of 
judgments  for  our  own  jurisdiction.  But  if  the  Justices 
at  the  taking  of  any  assise  are  required  before  judgment 
given  to  attaint  the  jurors  of  the  assise,  tliey  may  im- 
mediately,^ upon  security  and  pledge  of  the  partv, 
cause  the  jury  of  twenty-four  attainors  to  be  taken  if 

1  See  the  note  to  chap.  xi.  s.  2,  below. 


IT,  *240.]  OF  ATTAINT.  605 

they  are  present,  as  well  as  upon  a  certification.  For 
since  the  full  power  is  given  them  to  hear  and  deter- 
mine the  whole  matter,  *they  are  authorized  to  acquaint 
themselves  with  every  thing  necessary  to  clear  the  way 
to  their  judgment.  And  where  certification  or  attaint 
is  accessory  to  the  assise,  and  the  Justices  see  that 
without  certification,  or  without  attaint,  they  cannot 
proceed  to  judgment  to  determine  the  assise,  it  appears, 
and  true  it  is,  that  it  belongs  to  those  who  have  full 
jurisdiction  to  determine  that  assise,  to  take  such  at- 
taints and  certifications,  provided  it  be  presently  done ; 
for  if  not,  this  duty  does  not  belong  to  them,  neither 
ought  this  authority  to  be  granted  to  them.^ 

7.  Although  it  is  contained  in  the  Great  Charter  of 
liberties  that  some  assises  shall  be  taken  in  counties, 
yet  it  shall  not  be  understood  that  certifications  and 
attaints  must  likewise  be  taken  there.  For  that  is  not 
necessary  except  in  cases  where  no  authority  is  given 
but  upon  the  assise.  But  if  any  Justice  be  assigned 
with  fresh  power  to  take  an  attaint  or  certification? 
then  it  will  not  be  necessary  by  virtue  of  that  statute 
to  take  it  in  the  same  county.  For  assise,  certification, 
attaint,  and  jury  differ  in  their  privilege  and  nature. 

8.  When  the  attaint  is  brought,  the  verdict  of  the 
assise    ought   to    be    thoroughly   examined,  in    what 

1  •  When  the  Justice,  out  of  favour  for  one  party,  allows  a 
false  verdict  to  pass,  how  shall  the  falsehood  be  punished  ? 
Responsio.  Either  by  the  Judge  liimself,  by  resummoning  tlie 
parties,  or  by  another  Justice  ;  and  this  by  attaint,  or  by  bill  to 
the  king's  council.'     (Note  in  MS.  N.) 


606  BETTTOK.  [IT,  *240  K 

manner  the  twelve  jurors  pronounced  their  verdict. 
For  jurors  sometimes  swear  falsely  with  full  knowledge 
of  what  they  do ;  and  then  are  more  openly  perjured 
and  are  more  severely  to  be  punished  than  those  who 
are  forsworn  through  some  indiscretion,  *For  some 
persons  lie  openl}^,  when  conscience  does  not  rest  in 
their  thoughts.  Others  swear  falsely,  and  lie  througii 
a  foolish  hastiness,  which  does  not  come  directly  from 
their  thoughts,  as  in  the  case  of  those  who  pronounce 
their  verdict  before  they  have  thorouglily  examined 
their  thoughts,  and  these  are  less  punishable  than  such 
as  perjure  themselves  with  malice  afore-thought  against 
their  conscience.  And  some  are  forsworn  by  a  foolish 
verdict,  not  being,  aware  of  it  on  account  of  a  pre- 
sumption that  appears  true,  but  is  not  so;  and  if  they 
can  make  it  plainly  appear  how  they  were  deceived, 
some  extenuation  should  be  had  as  to  their  punishment, 
but  not  as  to  the  redressing  of  their  judgment. 

0.  Where  the  jurors  have  said  too  little  for  want  of 
examination  by  the  Justices,  or  have  given  their 
verdict  too  obscurely,  or  have  not  answered  fully,  as, 
if  they  have  concealed  any  part  of  the  truth,  being  in- 
duced thereto  by  some  mistake,  in  such  case  the  better 
remedy  is  by  certification  than  by  attaint,  that  by  such 
certification  the  jurors  may  render  certain  what  is  un- 
certain, and  reduce  to  truth  what  was  doubtful  and 
erroneous.  But  if  the  record  is  not  found  defective  or 
insufficient,  but  full  and  sufficient,  then  there  is  no 
room  for  certification  ;  for  the  jurors  cannot  gainsay 
or  challenofe  the  record. 


II,  *24l.]  AK  ATTAINT  LIES.  507 


^CHAPTER  X. 

In  what  cases  an  attaint  lies. 

1.  In  the  examinatioQ  of  every  record,  before  the 
attaint  is  granted  or  takes  place,  it  must  be  carefully 
observed  whether  the  assise  passed  in  form  of  assise 
upon  some  material  point  in  the  writ,  or  by  way  of 
jury,  and  whether  it  was  taken  in  the  presence  of  the 
tenant  or  not.  And  if  it  passed  upon  any  exception, 
then  it  must  be  seen  whether  the  exception  was  dilatory 
or  peremptory  ;  and  if  peremptory,  whether  peremptory 
of  the  writ  only,  and  not  of  the  action,  by  reason  of 
some  mistake  in  the  name  of  a  vill  or  of  a  person,  which 
does  not  affect  the  assise,  or  peremptory  of  the  assise 
as  well  as  of  the  writ.  In  the  former  case  attaint  does 
not  lie,  although  the  verdict  of  the  jurors  may  have 
been  mistaken  or  false,  on  account  of  the  assise  and  the 
action  remaining  entire.  In  the  latter  case,  as,  where 
any  person  demands  by  the  assise  a  tenement  where 
he  ought  to  have  demanded  a  rent,  if  the  jurors  find 
for  the  plaintiff,  an  attaint  lies  by  reason  of  the  falsity. 

2.  If  the  writ  is  suitable  and  good,  the  plaintiff  must 
offer  to  prove  the  whole  of  his  case  by  the  jurors  of  the 
assise ;  and  where  the  tenant  consents,  and  straight- 
way puts  himself  on  the  assise,  if  the  jurors  make  a 
false  verdict,  it  is  a  proper  case  for  attaint ;  as  if  they 


508  BPJTTON.  [II,  *241  J,  242. 

*find  that  the  tenant  disseised  the  plaintiff,  where  he 
did  not  disseise  him  at  all.  Sometimes  also  an  attaint 
may  be  brought  upon  their  verdict  as  to  matters 
which  touch  the  substance  of  the  assise,  as  where  they 
find  that  the  tenant  hath  disseised  the  plaintiff  of  his 
freehold,  whereas  he  never  held  except  in  villenage, 
and  in  like  cases.  It  lies  also  upon  a  point  of  their 
verdict  concerning  some  exception,  although  not  con- 
cerning the  action  or  the  assise,  where  the  verdict  does 
not  pronounce  simpl}'^,  but  adds  a  reason,  as  that  the 
plaintiff  could  not  have  a  freehold,  because  he  is  a  vil- 
lain, and  holds  the  tenement  in  villenage,  whereas  this 
is  false,  because  the  man  is  free  and  holds  freely, — and 
in  the  reverse  case; — if  this  plaintiff  can  afterwards  by 
four-and-twenty  jurors  prove  himself  to  be  free,  and 
that  the  first  jurors  gave  a  false  verdict,  attaint  lies, 
because  the  assise  was  charged  with  the  substance  of 
the  plaint,  and  not  with  an  incidental  matter  for  a 

3.  If  the  plaintiff  had  simply  denied  the  exception 
of  the  tenant,  and  said  that  he  was  free,  and  was  read}' 
to  verify  the  same  by  the  jurors  of  the  assise,  in  such 
case,  whether  the  ])roof  were  made  against  the  plain- 
tiff by  the  jurors  or  by  evidence  of  suit  of  kindred  or 
not,  although  the  jurors  gave  a  false  verdict,  yet  no 
attaint  would  lie,  because  the  ])arties  of  their  own 
consent  put  themselves  *upon  their  verdict,  as  upon  a 
jury,  to  prove  the  exception  ;  and  whether  they  find  for 
or  against  the  plaintiff,  yet  his  condition  is  not  ren- 
dered better  or  worse  or  in  an3Mvise  altered  by  thoir 


II,  *242<^.]  AN  ATTAINT  LIES.  509 

verdict.  In  such  cases  the  proof  alwjiys  lies  upon  the 
tenant ;  and  if  the  plaintiff  in  answer  to  the  exception 
of  villonage  says  that  he  is  free,  still  it  lies  on  the  ten- 
ant to  prove  his  exception,  unless  the  plaintiff  chooses 
to  prove  the  negative;  and  if  no  suit  be  brought  of  the 
kindred  of  the  plaintiff  to  make  good  his  exception, 
then  of  necessity  it  must  be  proved  by  the  jurors. 

4.  Although  the  tenant  should  tacitly  admit  the 
declaration  of  the  plaintiff,  yet  the  assise  may  be 
stayed  by  some  exception,  as  by  setting  up  some  deed 
against  the  plaintiff,  such  as  liis  writing  of  covenant  or 
some  condition  or  other  title.  And  if  the  tenant  offers 
to  aver  this  writing  to  be  the  deed  of  the  plaintiff  or  of 
his  ancestor  whose  heir  he  is,  and  this  is  either  verified 
or  not  denied,  the  assise  and  the  action  fall.  And  if 
the  deed  is  denied,  in  that  way  the  assise  and  the  action 
are  brought  at  an  end,  and  a  new  plea  begins  upon  the 
proof  of  the  covenant.  This  may  be  proved  in  several 
ways;  sometimes  by  the  deed  and  the  witnesses  therein 
named,  and  sometimes  where  there  is  no  charter,  by 
the  jurors  of  assise,  and  this  will  be  done  in  the  form 
of  a  jury,  if  the  parties  ^consent,  and  then  no  attaint 
will  lie  ;  and  if  the  plaintiff  will  not  consent,  let  him 
take  nothing  by  his  plaint,  and  if  the  tenant  refuses, 
let  him  be  treated  as  without  defence. 

5.  The  same  reason  holds  in  the  exception  of  villen- 
age  ;  for  in  such  case  the  tenant  must  prove  the  villen- 
ase,  and  according  as  the  proof  turns  out  for  or  against 
the  plaintiff  the  action  will  be  determined.  Yet  w^hen 
the  tenant  alleges  that  the  plaintiff  is  his  villain,  it  is 


610  BRITTON.  [II,  *243. 

not  necessary  to  prove  the  exception  by  the  kindred  of 
the  plaintiff;  for  such  proof,  if  made  against  the  lord, 
might  be  prejudicial  to  him  and  would  afford  the 
])laintiff  a  strong  exception  in  a  plea  of  Naifty,  if 
ever  the  lord  chose  to  claim  him  as  his  villain,^  But 
if  the  lord  is  sure  that  the  proof  will  be  made  against 
the  villain,  that  he  was  his  astrer,^  reseant  in  his  villen- 
age,  and  he  in  seisin  of  him,  with  his  chattels  and 
his  suit,  as  of  his  villain  within  the  year,  in  such  case 
the  proof  may  well  pass  by  the  kindred  and  by  the 
jurors  of  the  assise,  and  thus,  if  the  plaintiff  consents, 
both  the  status  and  the  assise  will  be  determined. 

6.  But  if  the  plaintiff  says  that  he  is  free  and  of  free 
condition,  and  demands  award  and  judgment,  whether 
he  ought  to  put  himself  concerning  his  condition  upon 
the  assise,  before  full  restitution  of  all  his  goods  move- 
able and  immoveable,  in  such  case  the  asssise  shall 
cease,  and  the  tenant  will  be  forced  to  proceed  by  writ 
of  Naifty,  supposing  that  the  villain  is  a  run-away,  and 
not  to  be  found  within  the  lord's  fee.  *And  if  the  ex- 
ception of  villenage  be  tried  and  proved  by  the  assise 
by  common  consent  of  the  parties,  yet  such  proof  shall 
not  be  prejudicial  to  the  condition  of  the  plaintiff, 
neither  does  any  attaint  lie.  For  the  effect  of  the  ex- 
ception is  not  to  prove  the  plaintiff  a  villain,  but  to  bar 

1  This  agrees  with  Fleta,  p.  337.  It  would  appear  from  Brar- 
ton,  that  the  objection  to  the  proof  by  suit  of  kindred,  where  the 
alleged  villain  was  not  actually  in  his  lord's  seisin,  was  rather 
founded  upon  consideration  for  the  villain  than  for  the  lord. 
(Brae.  290.) 

'-  See  before,  p.  456,  note. 


IT,  *243  5.]  AN  ATTAINT  LIES.  511 

him  from  taking  anything  by  his  plaint.  And  thus  it 
appears  that  in  these  two  exceptions  of  covenant  and 
of  villenage  the  assise  remains  entire,  although  it  be 
altered  by  some  collateral  matter  determined  by  jury. 
7.  AVhere  the  assise  is  taken  in  the  absence  of  the 
tenant,  or  if  he  is  present  and  alleges  no  cause  why  the 
assise  ought  to  be  stayed,  but  forthwith  puts  himself 
thereupon,  in  such  case,  whether  the  jurors  find  for  the 
one  party  or  the  other  upon  the  points  of  the  writ, 
supposing  they  find  what  is  false,  or  if  they  say  that 
there  was  a  covenant,  as  aforesaid,  where  there  was 
none,  or  that  the  plaintiff  is  the  villain  of  the  tenant, 
when  he  is  free,  or  that  he  is  a  bastard,  when  he  is 
legitimate,  or  other  like  thing, — in  all  these  cases  an 
attaint  will  lie.  And  whereas  the  substance  of  the 
original  writ  ought  to  be  contained  in  the  writ  of 
attaint,  it  follows,  and  it  is  true,  that  an  attaint  does 
not  properly  lie  except  upon  the  points  of  the  original 
writ. 


*CIIAPTER  XI. 

Of  the  Excuses  of  Jurors  in  mitigation  of  Attaint. 

1.  "Where  the  tenant  is  absent  at  the  taking  of  the 
assise,  the  jurors  are  then  more  liable  to  err,  inasmuch 
as  they  are  not  instructed  by  any  one  how  to  find  for 
the  tenant  ;  and  if  they  should  forswear  themselves, 
a  probable  error  ought  to  excuse  them  in  the  attaint, 
so  that  they  may  be  spared  the  penalty  either  in  part 
or  entirely,  according  as  the  error  has  been  gross  or 
slight,  rightful  or  colourable. 


512  BEITTOK  [II,  *244 

2.  Attaint  never  lies  in  the  great  assise,  because  the 
tenant  puts  himself  thereon  by  his  own  election.  But 
in  petty  assises  there  is  frequent  occasion  for  it.  Many 
oaths  are  taken  upon  vvliich  no  attaint  lies,  as  an  oath 
taken  by  one  man  alone  to  another,  for  in  that  case 
vengeance  belongeth  only  to  God.  Moreover  no  attain  t 
lies  upon  the  verdict  concerning  damages,^  nor  in  certifi- 
cations, nor  in  purgations,  nor  in  defences  by  wager  of 
law  against  the  suit  produced  by  the  plaintiff,  nor  gen- 
erally in  inquests  or  juries,  except  by  our  special  com- 
mand. 

3.  "With  respect  to  jurors,  in  order  that  the  punishment 
upon  attaint  may  be  mitigated,  it  must  be  observed 
whether  the  error  be  patent  or  secret ;  for  if  it  be  secret, 
as  it  frequently  happens  in  contracts  made  secretly 
between  the  parties  where  two  or  three  only  are  privy 
to  it,  *in  such  case  the  jurors,  from  their  ignorance  of  the 
contract,  may  be  easily  mistaken,  and  such  error  is 
excuable.  But  of  a  thing  done  openly,  so  that  the 
greatest  part  of  the  country  knoAvs  it,  an  error  is  not 
excusable. 

4.  Where  the  jurors  relate  the  whole  truth  of  the 
fact  just  as  it  happened,  and  judgment  is  given  accord- 

^  So  Bracton  and  Fleta  say  that  an  error  in  damages  is  not  a 
case  for  attaint,  but  for  certification  by  the  jurors.  But  in  the 
Cornish  Iter,  30  Edw.  I.,  Berewick,  Justice,  being  dissatisfied 
with  the  verdict  of  an  assise  upon  the  point  of  damages,  warned 
the  jury,  that  there  might  be  an  attaint  as  well  for  the  damages 
as  for  the  principal  matter,  and  that  immediately,  without  is- 
suing a  writ  out  of  the  Chancery.  (Year  Book,  30,  31  Edw.  I. 
p.  124.)     As  to  the  immediate  attaint,  see  before,  c.  19.  s.  6. 


II,*244J.]  AN  ATTAINT  LIES.  513 

ing  to  the  verdict,  il'  error  be  found  in  the  judgment,  tiie 
Justices  are  in  fault  for  the  folly  of  their  judgment 
rather  than  the  jurors  for  an3'  false  oath.  Therefore 
the  Justice  must  needs  make  diligent  examination  into 
€Very  verdict,  whereby  matters  which  are  doubtful 
or  erroneous  may  be  reduced  to  certainty  and  trutli. 
And  if  any  difficulty  arises  in  giving  judgment,  it  is 
needful  to  advise  with  one  more  learned.  For  it  is 
safer  for  a  Justice  to  be  in  some  doubt  as  to  all  matters 
than  to  be  too  confident  in  his  own  opinion  ;  and  re- 
pentance often  follows  upon  rash  counsel,  and  still 
oftener  upon  rash  judgment. 


.     CHAPTER  XII. 

Of  the  Trial  and  Judgment  in  Attaint. 

1.  The  writ  of  attaint  being  obtained,  and  the  party 
summoned,  he  has  a  right  to  be  essoined  at  the  day. 
And  when  the  parties  on  the  second  day  are  present  in 
court,  but  the  attainors  are  not,  let  another  day  be 
given  to  the  parties,  and  the  attainors  *be  required  to 
iind  security  and  pledges  to  appear  at  the  same  day. 
And  if  the  party  summoned  makes  default,  let  him  be 
attached  to  be  there  some  other  day.  And  if  the 
])laintifif  makes  default,  and  the  party  attached  or  sum- 
moned offers  himself,  the  Avrit  falls,  and  the  jurors 
shall  go  without  day,  and  the  plaintiff  and  his  pledges 
to  proscute  remain  in  mercy. 

2.  When  the  parties,   the  jurors,  and  the  attainors 
33 


614  BKITTON.  [II,  *245. 

are  present  in  court,  and  the  party  summoned  or 
attached  alleges  no  exception  why  the  attaint  ought 
not  to  pass,  then  in  the  first  place  let  the  record  of  the 
assise  be  heard,  to  wit,  how  it  passed.  Next,  let  the 
plaintiif  be  asked  in  what  points  the  jurors  of  the  assise 
are  perjured,  whether  in  the  articles  of  the  writ,  or 
upon  some  exception,  such  exception  not  having  been 
put  forward  by  the  tenant,  but  only  by  the  jurors  of 
the  assise  in  their  verdict,  when  they  w^ere  charged  to 
find  upon  the  whole  matter  of  the  assise.  Thereupon 
let  the  attainors  be  charged  by  their  oath  to  speak  the 
truth  ;  and  the  oath  whereby  they  shall  be  charged 
shall  not  be  the  oath  of  assise,  but  the  oath  of  jur3\  And 
after  they  are  sworn,  let  the  form  of  the  plaint  be 
forthwith  shown  to  them,  and  upon  what  points  they 
are  to  speak  the  truth  ;  as  for  instance,  whether  he  who 
complains  has  been  wrongfully  disseised  or  not.  And 
let  them  be  informed  of  the  plaintiff's  case. 

*3.  When  the  jurors  are  returned,  and  are  ready  to 
give  in  their  verdict,  their  reasons  ought  to  be  strictly 
examined,  so  that  manifest  truth  or  presumption  at 
least  may  be  on  their  side,  and  their  verdict  grounded 
on  probable  reasons ;  and  according  thereto  let  judg- 
ment be  given.  For  sometimes  they  may  be  as  easily 
deceived  by  some  probable  error  as  the  first  jurors,  and 
thus  for  want  of  good  examination  by  the  Justices  a 
false  judgment  may  be  given. 

4.  If  the  attainors  cannot  agree  in  one  opinion,  let 
them  be  afforced  by  others.  And  if  they  say  thattliey 
know  nothing  of  the  fact,  or  that  they  are  in  doubt,  so 


II,  *245  b.]  OF  THE  TRIAL.  515 

that  they  cannot  fully  declare  the  truth,  let  the  posses- 
sion remain  undisturbed.  So,  if  they  are  agreed,  and  find 
against  the  plaintiff  in  the  same  way  as  the  jurors  of 
the  assise,  the  possession  shall  remain  as  before,  and  it 
shall  be  adjudged  that  the  twelve  made  a  lawful  ver- 
dict, and  that  the  plaintiff  be  committed  to  gaol,  and 
there  punished  by  imprisonment  and  fine. 

5.  If  the  last  verdict  is  contrary  to  the  first,  it 
follows  that  the  first  jurors  will  be  attainted  of  a  false 
oath  ;  and  it  shall  be  awarded  that  the  plaintiff  recover 
his  seisin,  and  the  tenant  be  in  mercy,  and  that  the 
first  jurors,  if  they  are  present,  do  for  ever  after  lose 
their  free  law,  so  that  thenceforth  they  shall  not  be 
credited  upon  any  oath,  and  that  their  lands  and 
chattels  be  taken  into  our  hand,  and  they  be  sent  to 
gaol,  and  there  put  to  ransom.  *And  if  they  are  absent, 
it  shall  be  commanded  that  they  be  taken.  Some 
jurors  however  may  be  sometimes  excused  with  regard 
to  the  loss  of  their  free  law,  although  they  be  not  as  to 
the  ransom,  namely,  those  who  through  tenderness  of 
conscience  before  the  exhibition  of  any  plaint  confess 
they  took  a  false  oath  by  reason  of  some  probable  error, 
and  pray  that  they  may  amend  ;  and  in  such  case,  if 
all  the  jurors  pray  to  amend  their  verdict,  the  attaint 
need  not  pass  by  writ,  but  the  parties  should  be  called 
to  reverse   the   judgment.*     The   jurors   however  are 

1  '  Casus.  A  parson  brings  assise  of  Utrum  against  a  lay 
tenant.  The  twelve  jurors,  against  their  conscience  or  by  a 
misguided  conscience,  (ou  de  conscience  blesmie,)  say  that  the 
land  is  frank-almoigne  belonging  to  the  church.     The  parson 


516  BRITTOK  [11,^246. 

punishable  by  simple  fines  only  ;  and  if  all  the  jurors 
do  not  repent,  yet  those  who  do  so  shall  have  the  bene- 
fit of  their  goodness. 

6.  An  attaint  may  be  barred  from  passing  in  several 
ways,  as  where  judgment  was  never  given  upon  the 
proceedings  in  the  assise,  the  Justices  being  divided  ;  or 
although  it  was  given,  yet  it  was  never  put  in  execution  ; 
or  although  it  was  partly  put  in  execution,  part  of 
it  still  remains  to  be  performed.  It  is  likewise  often 
stayed  by  agreement  of  the  parties,  and  in  that  case 
let  seisin  be  executed  by  judgment  according  to  the 
record  of  the  Justices.  *lt  ought  also  to  be  stayed 
Avhere  the  fault  is  in  the  Justice,  which  may  be  owing 
either  to  a  foolish  judgment  or  to  error  in  the  enrol- 
ment, or  because  the  Justice  would  not  allow  tlie  party 
his  reasonable  exceptions  or  his  reasonable  challenges 
of  the  jurors  ;  and  in  such  cases  the  proceedings  are  to 
be  restored  to  the  state  they  were  in  at  the  time  of  the 
exception  being  put  forward.  An  attaint  ought  like- 
wise to  be  stayed  where  the  plaintiff  is  tenant  of  the 
tenement  which  lie  lost,  or  of  part  of  it,  by  his  own  in- 
trusion, or  by  redisseisin,  because  he  has  lost  his  right 
to  recover  by  judgment  a  thing  which  has  obtained  by 
his  own  force  in  despite  of  the  law. 

7.  As  an  assise  is  not  to  be  taken  upon  an  assise,  so 
neither  is  an  attaint  to  be  taken  upon  an  attaint,  that 
is,  between  the  same  persons,  of  the  same  fact,  and   of 

tukes  possession.  Then  tlie  juroi's,  except  two  who  are  dead, 
come  before  Justices,  and  acknowledge  of  their  own  accord  that 
tliey  made  false  oath.     Quid  juris?'     (Note  in  MS.  N.) 


II,  *246.]  OF  THE  TRIAL.  517 

the  same  thing.  Yet  two  attaints  may  follow  one 
assise,  as  where  the  jurors  ought  to  have  given  or 
taken  away  the  whole,  when  they  gave  or  took  away 
part  only  ;  ^  not  however  by  different  attainors,  but  by 
the  same  jurors,  to  avoid  the  peril  which  might  ensue 
if  there  should  happen  to  be  a  contrariety  between  the 
different  attainors.  And  although  an  attaint  should 
have  once  passed,  yet  the  attainors  may  be  aided  by 
certifications  in  the  same  manner  and  in  the  like  cases 
as  in  verdicts  of  assises. 

^  In  this  case  each  party  might  complain  of  the  verdict,  and 
therefore  there  might  be  two  attaints.    See  Bracton,  f .  295  b. 


BOOK  V. 

OF  PLEAS  OF  DOWER,  AND  ENTKY. 

*CHAPTER  I. 

Of  the  Nature  of  Dower. 
I. 

Matrimony  is  no  other  thing  than  the  union  of  a 
woman  with  a  man  with  the  consent  of  both  by 
junction  of  Holy  Cburch,  to  live  together  as  one  flesh 
all  their  lives  without  expectation  of  separation. 
Therefore  it  is  expedient  that  married  women  should 
be  endowed,  in  order  to  give  women  the  better  dispo- 
sition to  love  matrimony,  although  dower  is  prejudicial 
to  the  lords  of  fees,  that  is  to  say,  such  dowers  as  are 
incident  to  matrimony.  Dower  is  that  which  a  freer 
man  gives  to  his  wife  at  the  church  door  in  regard  of 
the  charge  of  matrimony,  and  by  way  of  consideration 
for  the  marriage,  for  support  of  the  wife  and  nurture 
of  the  children  to  be  begotten,  if  the  wife  shall  survive 
the  husband. 

2.  Dower  is  not  assigned  in  all  places  nor  at  all  times 
but  at  certain,  to  wit,  at  the  commencement  of  the  con- 
tract and  at  the  door  of  the  church  only,  with  the 
solemnity  of  witnesses  and  not  in  private.  For  as  secret 
marriages,  performed  in  private,  are  prejudicial  to 
5^8 


II,  *247.]      OF  THE  NATURE  OF  DOWER.    519 

lieirs  with  reference  to  the  succession,  so  are  they  prej- 
udicial to  wives  with  respect  to  the  recov^ery  of  their 
dowers.  The  nature  of  dower  then  is  such,  that  where 
espousals  are  solemnized  at  the  church  in  the  presence 
of  the  people,  in  such  case  and  not  otherwise  dower 
may  be  demanded.^     *And  if  the  marriage  be  in  any 

'  Every  contract  of  marriage,  at  which  there  is  present  a 
parish  priest  (prestre  parochiel)  and  his  clerk,  is  at  the  church 
door,  and  sufficiently  solemn  ;  for  it  is  in  facie  ecclesice.  And 
because  usage  of  dower  is  become  law,  a  wife  is  sufficiently  en- 
dowed though  her  husband  say  nothing.  But  suppose  that  the 
husband  protests  distinctly  and  solemnly  at  the  time  of  the  mar- 
riage, tliat  he  does  not  intend  that  his  wife  shall  be  in  any  way 
endowed  after  his  decease,  and  this  is  a  known  and  notorious 
fact ;  quoestio,  whether  she  ought  to  recover  dower  or  not. 
Responsio.  It  seems  not,  for  if  the  husband  had  established  her 
dower  in  certain,  however  much  less  than  might  have  been 
proper  (qe  ne  affierreit),  and  she  had  agreed  thereto,  she  would 
be  barred  ;  so  in  the  other  case,  when  she  agreed  to  the  marriage 
without  having  dower,  she  cannot  have  her  action  for  dower. 
Contra.  Dower  is  accessory  to  marriage,  and,  tlie  principal  es- 
tablished, the  accessories  are  also  established.  (Ventm  est,  if  it 
had  not  been  contradicted  by  the  husband.)  Further,  dower  was 
ordained  by  common  constitution  of  people  ;  and  cannot  be  un- 
done by  any  single  person.  For  if  by  one,  then  by  another,  and 
.so  the  constitution  would  be  destroyed  ;  quodnon  est  permissum, 
"lie  pereat  lex  approbata.^  (Note  in  MS.  N.)  Tlie  reasons  here 
stated  against  permitting  the  common  rights  of  the  wife  to  be 
taken  away  by  private  agreement  so  far  prevailed,  that  before 
the  time  of  Littleton  it  became  an  established  rule,  that  the  wife 
Miiglit,  if  she  pleased,  after  the  death  of  her  husband  refuse  the 
dower  established  ad  ostium  ecclesice,  and  fall  back  upon  her 
conimou  law  right.  (Vet.  Nat.  Brev.  6.  b.  ;  Litt.  Ten.  s.  41.) 
The  restriction  of  dower  ad  ostium  ecclesi(v  to  a  tliird,  had  also 


520  BRITTON.      «  [II,  *247. 

way  dissolved  by  judgment  in  their  lifetime,  the  wife 
has  no  right  of  action  for  recovery  of  dower,  unless 
there  was  a  special  clause  granted  by  the  husband  in 
the  first  contract,  that  if  a  divorce  should  happen,  she 
should  have  a  certain  provision  for  the  term  of  her  life 
or  otherwise ;  and  such  specialty  made  for  dower  be- 
yond the  general  assignment  of  dower,  shall  entitle  her 
to  an  action. 

3.  Dowers  are  sometimes  given  by  the  father,  grand- 
father, or  other  kinsman  or  friend  of  the  wife,  of  cer- 
tain land  or  tenement,  or  of  part  of  their  chattels. 
And  sometimes  land,  tenement,  or  chattel  is  given  by 
the  wife  or  some  of  her  kindred  or  friends  for  the 
marriage.  Heasonable  dower  is  sometimes  increased 
by  an  addition  from  some  kinsman,  which  may  happen 
as  well  after  the  espousals  during  the  marriage,  as  at 
the  time  of  the  espousals  ;  and  this  increase,  whether 
the  gift  be  made  solely  to  the  wife  or  to  the  husband 
and  wife  jointly,  does  not  fall  into  division  or  partition, 
provided  the  gift  be  simple  and  absolute,  and  not  in 
consideration  of  the  marriage.^ 

4.  Reasonable  dower  in  knights'  fees  and  grand  ser- 


at  that  time  been  abolislietl.  (Litt.  Ten.  s.  39  ;  Co,  Litt.  34  b.  ; 
Fitzherbert,  Nat.  Brev.  150  P.)  The  Statute  37  Hen.  VIII.  c.  10, 
by  which  a  jointure  might  be  made  in  bar  of  dower,  was  a  res- 
toration of  the  old  law  in  another  form. 

1  This  must  be  understood  by  reference  to  book  iii.  chap.  8. 
sect.  8,  where  it  is  said  that  a  coheiress  claiming  her  part  of  the 
inheritance  is  bound  to  bring  lier  estate  in  marriage  into  hotch- 
pot.    Compare  Bracton  f.  92,  92  6. 


11,  *24r  h.-]    OF  THE  NATUEE  OF  DOWER    521 

jeanties  is  the  third  part  of  all  the  lands,  together  with 
the  fees  and  services,  which  the  husband  held  in  his 
demesne  as  of  fee  on  the  *day  of  his  marriage,  and 
whereof  he  could  afterward  endow  his  wife.^  In  so- 
cages, free  farms,  petty  serjeanties,  and  other  fees, 
let  dowers  be  granted  according  to  custom.  Reason- 
able dower  does  not  extend  beyond  this,  but  the  wife 
may  be  endowed  of  less,  if  she  is  contented  to  be  so. 
And  if  there  should  be  any  excess,  as  sometimes  hap- 
pens from  too  large  an  assignment  by  guardians,  while 
the  heirs  are  under  age,  such  excess  may  be  revoked 
by  writ  of  admeasurement  of  dower. 

5.  Wives  are  not  only  dowable  of  the  lands  and 
tenements  whereof  their  husbands  were  seised  in  their 
deraense  as  of  fee,  but  they  may  be  endowed  also  of 
any  lands  which  are  to  revert  to  the  heir  of  the  hus- 
band upon  the  death  of  a  tenant  holding  only  for  term 
of  life.2     And  in  that  case  the  widow  shall  wait  until 

1  The  right  of  the  wife  to  be  endowed  of  land  acquired  after 
the  marriage  is  somewhat  ambiguously  stated.  Compare  below, 
chap.  3.  s.  4  ;  Hengham  Parva,  cap.  3.  p.  87.  This  right,  which 
did  not  exist  in  the  time  of  Glanvill,  and  is  not  admitted  bj' 
Bracton  or  Fleta,  was  held  to  have  been  given  by  Magna  Charta, 
cap.  7.     See  the  Year  Book,  Mich.,  5  Edw.  II.  p.  133. 

2  This  should  be  understood  of  an  express  establishment  of 
dower,  not  of  dower  by  common  right.  Compare  the  parallel 
passage  in  Bracton  f.  93.  '  Case.  A.  has  four  carucates  of 
land,  and  aliens  one  carucate  to  D.  for  his  life.  A.  afterwards 
takes  wife,  and  dies.  His  heir  B.  enters,  and  assigns  one  caru- 
cate to  the  wife  in  dower.  D.  tlie  termor  dies.  Qucestio.  Shall 
the  wife  have  the  third  of  this  land  ?    She  shall  not,   for  tlie 


522  BRITTOX.  [II,  *24s. 

the  death  of  such  tenants,  unless  it  was  otherwise 
agreed  in  the  first  contract,  that  some  tenement  should 
be  especially  assigned  to  her  to  hold  in  tenancy  until 
the  land  so  assigned  to  her  after  the  other's  death 
should  fall  in. 

6.  Although  dower  may  in  the  first  instance  be  as- 
signed as  well  of  entire  manors  as  of  the  third  part  of 
all  the  manors,  yet  that  manor  which  is  the  head  of 
the  barony  or  county  shall  remain  entire  to  the  heir, 
if  the  widow  can  elsewhere  have  her  dower.  *But  if 
there  are  several  capital  manors  of  several  baronies  or 
counties,  and  the  widow  cannot  elsewhere  be  fully  en- 
dowed, in  such  case  she  must  be  endowed  thereof  by 
necessity,  which  overcomes  law  and  usage. 


CIIAPTEIi  II. 

Of  the  EstahlisJunent  of  Dower. 

1.  Dower,  properly  speaking,  is  established  by  hus- 
bands on  their  wives,  and  is  assigned  by  the  heirs  in 
pursuance  of  the  establishment  of  the  ancestor.  And  it 
may  be  so  established  from  the  beginning,  that  the 
husband  mav  assijifn  to  his  wife  some  certain  thins: 
for  her  dower,  if  she  is  satisfied  therewith,  yet  so  that 
if  such  certain  thing  be  sufficient  for  her  reasonable 
dower,  it  shall  remain  entire ;  if  there  be  any  defi- 
ciency, it  shall  be  made  up  to  her ;  and  if  there  be  any 

Imsband  had  notliing  of  tlie  demesne  the  day  he  married  or  ever 
after.'     (Note  in  MS.  JV.) 


II,  *248  h.]  ESTABLISHMENT  OF  DOWER.     523 

excess,  it  shall  be  restored  to  the  heir.  And  as  wives 
may  be  endowed  of  certain  tenements,  so  they  may 
also  be  endowed  in  a  certain  sum  of  money  or  goods, 
so  as  they  be  contented  therewith  ;  and  if  such  wives 
survive  their  husbands,  they  cannot  demand  for  their 
dower  more  than  according  to  the  first  appointment. 
And  if  the  chattels  of  the  deceased  are  not  sufficient, 
their  recovery  shall  be  for  the  difference.^ 

*2.  It  may  happen  that  dower  is  established  b}'^  a 
husband  not  on  one  wife  only,  but  on  several,  whether 
they  be  all  living,  or  on  one  after  the  death  of  another, 
or  after  a  divorce  pronounced  between  husband  and 
wife.  For  it  has  sometimes  been,  that  a  man  from 
wickedness  has  married  several  women,  all  living  at 
the  same  time ;  but  Holy  Church  says  that  of  such 
women  none  but  the  first  is  his  lawful  wife  ;  wherefore 
the  law  regards  the  others  only  as  false  wives  or  con- 
cubines ;  and  therefore  they  are  excluded  from  any  ac- 
tion of  dowser.  Sometimes  however  she  takes  the  dower 
who  was  found  last  seised  of  the  husband ;  and  some- 
times none  of  tiiem  have  dower,  as  will  be  mentioned 


1  The  expression  here  is  obscure.  Bracton  says  in  effect,  that 
when  a  burgess,  or  otlier,  endows  liis  wife  witli  a  sum  of  money, 
whether  he  has  lands  or  not,  she  can  ask  no  more  out  of  his 
tenements  or  chattels,  but  may  insist  on  liaving  the  full  amount 
named,  quamdiu  ibi  fuerit  unicus  obolus,  so  far  as  the  chattels 
of  the  husband  will  extend.  And  Fleta  says,  more  distinctly, 
that  such  dowers  cannot  be  demanded  except  so  far  as  the 
chattels  of  the  deceased  suffice  to  pay  them.  See  the  passages 
cited  in  the  margin  above. 


524  BRITTOK  [II,  *249. 

afterwards.^  So,  on  the  other  hand,  one  woman  may 
be  married  to  several  husbands  all  living  at  the  same 
time ;  yet  although  dower  may  have  been  established 
on  her  by  each  husband,  she  shall  not  have  dower  of 
them  all.  For  she  is  the  wife  of  one  only,  and  con- 
cubine to  the  others. 

3.  If  dower  be  deceivably  established  of  all  the 
tenements  which  the  husband  shall  purchase,  yet  where- 
as it  may  happen  that  he  may  never  purchase  any  land, 
and  the  widow  ought  not  to  be  without  dower,  if  the 
husband  had  lands  in  demesne  and  in  fee,  such  an  ap- 
pointment is  treated  as  an  appointment  of  reasonable 
dower  according  to  the  nature  of  the  fees  and  the 
custom  of  the  place.  For  the  law  assists  the  deceived 
rather  than  the  deceivers. 

4.  Dower  can  be  established  only  of  such  tenements 
*as  the  husband  held  on  the  day  of  his  marriage,  or 
shall  afterwards  have  held  in  fee  to  him  and  his  heirs, 
whether  the  heirs  be  comprehended  in  the  purchase 
generally  or  specially,  and  whether  by  a  tacit  condition 
in  fee'^  or  by  being  specially  named,  as  thus :  to  such  a 
husband  and  to  his  heirs  which  he  shall  beget,  and  if 

1  It  appears  from  Bracton  tliat  tlie  last  possession  prevailed 
where  there  was  no  proof  of  the  legality  of  another  marriage. 
But  where  no  wife  was  in  possession,  and  no  sufficient  evidence 
which  claimant  was  tlie  lawful  wife,  no  dower  was  assigned, 
Bracton,  f.  94. 

2  These  words  possibly  refer  to  an  estate  given  in  frank-mar- 
riage, which  was  subject  to  a  tacit  condition  in  favour  of  the 
donor  and  his  heirs.     See  Stat.  West.  2,  (13  Edw.  I.)  c.  1. 


II,  *249/a]    establishment  of  dower.    525 

he  shall  have  no  issue,  or  if  sucli  issue  shall  die  or  fail, 
tliat  the  land  thus  given  shall,  after  the  decease  of 
the  purchaser,  return  to  the  donor  and  his  heirs.  In 
such  a  case,  if  the  husband  has  issue,  although  such 
issue  die  and  fail,  the  wife  shall  not  be  thereby  barred 
from  having  her  dower;  for,  although  the  gift  was 
in  the  beginning  conditional  and  the  fee  in  suspense 
yet  by  the  birtii  of  issue  the  feoffment  becomes  sim- 
ple and  absolute,^  and  thus  an  action  of  dower  ac- 
crues to  the  wife.  So  is  it  as  to  tenements  purchased 
in  all  other  cases  where  the  fee  is  in  suspense,  and  de- 
pends upon  an  event ;  for  if  the  event  named  in  the 
feoffment  happens,  then  a  fee  thereby  accrues  to  the 
purchaser,  so  that  the  gift  which  was  at  first  contin- 
gent and  conditional,  becomes  simple  and  absolute  ; 
and  according  to  tlie  event  an  action  accrues  to  the 
wife  to  demand  her  dower  or  not. 

5.  Moreover,  dower  which  is  established  out  of  lands 
and  tenements  which  the  husband  wrongfully  holds, 
as  being  the  right  of  another,  is  invalid,  if  without 
fraud  he  loses  them  by  judgment  in  his  lifetime,  or  his 
heir  after  his  death.  *But  as  a  man  may  endow  his 
wife  out  of  his  own  property  whether  definitely  or  in- 
definitely, so  he  may  do  it  out  of  lands  belonging  to 
others,  as  where  a  husband  endows  his  wife  with  a  rea- 

1  The  Statute  de  donis  conditionalibus  (Stat.  West.  2.  (13 
Edsv.  I.)  c.  1.)  had  recently  been  made  when  tliis  was  written, 
and  tlie  doctrine  here  stated  appears  to  be  that  wliich  prevailed 
before  the  judicial  exposition  of  that  statute.  See  Coke,  Inst, 
pt.  ii.  p.  335. 


526  BRITTON.  [II,  *249  h. 

sonable  dower  of  the  inheritance  held  by  his  father  or 
mother,  with  their  consent;  for  such  endowment  is  in- 
effectual unless  the  owner  of  the  land  is  present,  and 
solemnly  assents  thereto  at  the  church  door.  And  al- 
though there  be  a  deed  witnessing  the  act,  yet  it  is  in- 
valid unless  it  be  made  or  at  least  allowed  by  the  tenant 
of  the  land  at  the  church  door,  and  this  by  reason  of 
the  words  in  the  count,  which  ought  to  say,  '  whereof 
lie  endowed  her  by  assent  of  his  ancestor  at  the  church 
door ; '  for  if  she  counts  that  he  assented  elsewhere, 
the  count  is  defective,  and  the  writ  will  be  abatable 
for  the  variance  between  it  and  the  count.  But  rea- 
sonable dower  may  sometimes  have  been  established 
by  a  man  on  his  wife  ;  and  if  the  heir  in  the  lifetime 
of  the  ancestor  and  his  wife,  with  the  assent  of  tho 
ancestor,  endows  his  wife  of  the  third  part  of  all  the 
lands  of  the  ancestor,  such  endowment  will  he  preju- 
dicial to  the  first  wife.  lie  must  of  necessity  therefore 
endow  her  only  of  the  third  part  of  two  parts,  and  of 
thethirdof  the  third  part  when  it  shall  fall  in.  So  in  the 
reverse  case, — if  the  ancestor  take  a  wife  whom  he  has 
to  endow  after  the  heir  has  endowed  his  wife  of  tho 
third  part  of  the  whole  by  the  assent  of  the  ancestor.* 

^  '  If  the  father  be  sole  and  without  a  wife  at  the  time  when 
his  son  endows  his  wife  by  the  father's  assent,  and  the  father 
take  a  wife  afterwards,  he  cannot  endow  her  except  of  the  third 
of  two  thirds  ;  and  on  the  death  of  tlie  father  and  son.  the  son's 
wife  shall  have  her  action  to  have  dower  oiit  of  the  whole.  And 
where  the  father  and  mother  are  joint  purchasers  and  the  son 
endows  his  wife  by  tlieir  assent,  constat,  that  this  is  of  a  third  of 


11,  *245.]        ASSIGNMENT  OF  DOWER.  527 

*6.  When  dower  has  been  once  legally  established,  it 
cannot  be  increased  to  the  prejudice  of  the  heir  by  any 
agreement  between  the  ancestor  and  his  wife  after  the 
marriage.  And  as  it  cannot  be  increased  to  the  preju- 
dice  of  the  heir,  so  neither  can  it  be  diminished  to  the 
prejudice  of  the  wife. 


CHAPTER  111. 
Of  the  Assignment  of  Dower. 

1.  After  the  husband's  death,  the  establishment  of 
dower  is  first  confirmed.  Wherefore  let  the  dowers  of 
widows  be  forthwith  assigned  and  delivered  to  them 
according  as  they  were  established,  without  asking  any 
fine  or  using  any  oppression,  and  not  only  their  dowers, 
but  also  the  tenements  which  were  given  to  them  in 
marriage.  And  because  it  is  improper  that  such  wives 
should  be  thrust  out  of  doors  with  their  husbands' 
bodies,  without  having  a  place  to  lodge  in,  it  is  allowed 
by  law  and  custom  that  they  may  abide  in  the  capital 
messuages  which  belonged  to  their  husbands  forty  days 
after  their  husbands'  deaths,  and  that  in  the  meantime 

the  whole,  and  if  the  mother  dies,  and  the  father  takes  another 
wife,  tlie  endowment  of  this  wife  takes  nothing  from  the  son's 
wife's  dower  first  established.  But  suppose  the  father  dies,  and 
the  mother  takes  another  husband,  who  has  issue  by  her,  and 
the  mother  and  son  die  in  one  day ;  qu.  whether  the  second 
husband  shall  hold  the  whole  by  the  curtesy,  or  the  son's  wife- 
have  her  dower.'     (Note  in  MS.  N.) 


528  BRITTOK  [II,  *245  h,  246. 

their  dowers  be  assigned  to  thera,  unless  the  capital 
messuage  be  the  *head  of  the  county  or  of  a  barony,  or 
a  castle  ;  in  which  case  some  other  decent  house  shall 
be  provided  for  their  dwelling,  where  they  may  keej) 
their  quarantine  ;  and  that  wheresoever  they  abide 
they  shall  have  suitable  maintenance  out  of  the  profits 
of  the  whole  of  the  lands  until  their  dowers  be  assigned 
and  delivered  to  them,  according  to  the  appointment 
made  at  the  church  door  on  the  day  of  marriage,  in 
the  same  state  in  all  points,  with  the  fruits,  rents,  and 
all  the  appurtenances,  as  they  were  on  the  day  of  the 
death  of  their  husbands ;  and  that  which  has  been  taken 
or  gathered  in  the  meantime  shall  be  restored  to  them, 
2.  But  where  any  husband  has  aliened  his  inherit- 
ance in  his  lifetime  by  feoffment  or  farms  either  in  part 
or  in  the  whole,  in  such  case  the  tenants  are  not  obliged, 
whether  they  will  or  no,  immediately  to  render  to  the 
wife  her  dower,  because  they  have  great  reason  for  re- 
taining it,  until  they  are  compensated  to  its  value,  so 
far  as  the  law  will  permit.  But  if  anyone  wrongfully 
delays  the  rendering  of  dower,  he  is  obliged  to  make 
satisfaction  to  the  wife  for  her  damages,  though  not 
in  all  cases.  For  if  the  wife  brings  her  plaint  by  writ 
of  dower  patent  demanding  the  tenements  aliened  in 
,  the  lifetime  of  her  husband,  by  this  writ  she  ought  not 
to  recover  damages,  as  will  appear  in  its  proper  place. 
]>ut  if  she  complains  by  the  common  writ  of  dower 
close,  and  demands  hei*  reasonable  dower,  she  shall  by 
this  writ  recover  the  third  part  of  all  the  tenements 
which  her  husband  held  in  demesne  and  in  fee  as  his 


II,  *246  h.]      ASSIGNMEx\T  OF  DOWEK.  529 

own  right  on  the  day  of  his  marriage  witli  her,  and 
also  of  all  such  tenements  as  were  his  after  he  married 
her ;  and  if  she  can  prove  that  she  has  been  wrongfully 
delayed  in  obtaining  her  dower,  in  such  case  she  shall 
recover  damages,  but  not  where  the  deforceor  has  a 
good  reason  for  keeping  back  the  ilower,  as  before  is 
mentioned.  And  let  him  restore  the  damages  wlio 
shall  be  found  guilty  of  the  wrong. 

3.  In  some  instances  the  widow  shall  recover  more 
than  the  third  part,  according  to  the  nature  of  the  fee 
and  the  custom  of  the  land.  For  there  are  many  tene- 
ments in  which  reasonable  dower  extends  to  a  moiety 
of  the  land,  as  is  the  case  in  some  socage  tenements  ; 
and  in  such  cases  the  custom  of  the  country  and  of 
the  place  is  to  be  observed  as  law. 

4.  Sometimes  also  she  has  a  right  to  recover  a  cer- 
tain quantity  for  her  dower  pursuant  to  the  establish- 
ment of  her  dower ;  and  in  that  case  let  her  recover  by 
writ  of  dower  named.  And  if  the  dower  so  specifically 
named  exceed  the  value  of  reasonable  dower,  the  heir 
may  recover  the  excess  by  writ  of  admeasurement  of 
dower.  But  if  that  specific  dower  does  not  amount  to 
the  value  of  the  third  part,  or  to  the  value  of  reason- 
able dower,  she  must  be  contented  with  what  there  is. 
*For  more  than  the  dower  named  she  cannot  claim, 
since  at  the  establishment  of  it  she  was  contended  to 
take  it.  But  if  she  was  not  so  contented  at  the  estab- 
lishment, and  can  verify  her  dissent,  then  she  shall  re- 
cover the  difference  to  the  extent  of  the  value  of  reason- 
able dower.     So  likewise  if  she  can  aver  that  in  the 

34 


630  BRITTON.  [II,  *247, 

establishment  a  condition  was  made,  that  if  the  dower 
named  did  not  amount  to  the  value  of  reasonable  dower, 
the  difference  should  be  assigned  to  her  to  the  extent 
of  the  value  of  reasonable  dower.  And  by  means  of 
this  writ  she  shall  also  recover  damages  against  the 
wrong  doer  when  she  shall  have  recovered  her  dower. 
And  in  like  manner  shall  widows  recover  damages  for 
the  wrongful  detainer  of  dower  established  out  of  the 
tenements  belonging  to  another. 

5.  Dower  ought  to  be  assigned  as  a  whole,  and  not 
by  parcels  ;  that  is  to  sa\^,  the  third  of  all  the  lands 
and  tenements  which  the  husbands  held  in  demesne 
and  in  fee,  as  well  of  villenages,  knights'  fees,  services 
of  freemen,  and  advowsons  of  churches,  as  of  demesne 
land.  Unless  however  in  the  original  establishment  of 
the  dower  special  mention  was  made  of  advowsons  or 
third  presentations,  the  Avidow  cannot  demand  any- 
thing for  dower  in  an  advowson  or  presentation,  be- 
cause the  advowson  of  a  church  is  not  partible,  neither 
would  it  admit  of  division.^  *But  where  the  dower  was 
established  of  an  entire  manor  with  all  the  appur- 
tenances, without  any  reservation,  if  the  advowson  of 
a  church  be  appendant  to  the  manor,  the  advowson  be- 
longs to  the  dower,  and  the  widow  will  have  a  right 

^  Bracton  states,  that,  where  there  were  several  advowsons,  the 
widow  should  have  her  share  of  them  as  entireties  ;  but  where 
there  was  only  one,  it  should  not  be  divided,  but  she  should 
have  satisfaction  for  its  value.  If  not  so  satisfied,  he  suggests 
that  she  ought  to  have  the  third  presentation.  Compare  Butler's. 
Coke  Litt.  32  a,  32  b,  note  197. 


II,  *247  h.]     ASSIGNMENT  OF  DOWEE.  531 

to  present  when  the  church  becomes  vacant.  For  these 
words  '  without  any  reservation '  are  equivalent  to  a 
special  establishment  of  the  advowson  on  the  wife. 

6.  In  the  assignment  of  dower  widows  cannot  claim 
anything  in  mansions  or  castles  which  are  heads  of 
baronies  or  counties,  nor  in  mansions  in  other  fees 
where  there  is  but  one  capital  messuage,  nor  in  pre- 
serves of  deer,  vivaries,  hays,  stanks,  parks,  or  gardens, 
nor  in  the  fosses  of  the  messuage,  nor  anything  within 
the  close  of  the  capital  messuage  beyond  her  quaran- 
tine, unless  the  heir  chooses,  so  long  as  the  value  of 
her  dower  can  be  assigned  to  her  in  land,  rent,  or  other 
thing  elsewhere.  But  let  one  of  the  houses  of  the 
villain  tenements  be  assigned  to  her  to  dwell  in,  and 
let  her  be  content  therewith.  And  if  there  be  no  such, 
let  her  be  provided  with  a  plot  of  ground  in  some  con- 
venient place  to  build  and  dwell  in,  and  let  that  be  as- 
signed to  her  in  length  and  breadth  in  proportion  to 
the  third  part  of  the  messuage,  but  not  to  the  value  of 
the  third  part  of  the  building;  and  let  a  sufficient  mes- 
suage be  erected  for  her  out  of  the  issues  of  the  entire 
inheritance.  But  if  the  heir  cannot  assign  her  the 
*value  elsewhere,  then  of  necessity  he  must  endow  her 
of  the  third  part  of  whatever  he  has,  saving  the  advow- 
son  of  a  church,  unless  special  mention  was  made 
thereof  in  the  establishment.  But  dower  shall  never 
be  assigned  of  deer  or  other  game,  nor  of  other 
beasts  in  parks  or  chases,  nor  of  fish  in  waters,  nor 
of  homages.  Yet  in  fisheries  where  the  profits  are 
casual,  sometimes  the  third  draught  may  be  assigned, 


532  BRITTOX.  [II,  *24S. 

so  that  the  heir  may  fish  twice  and  the  widow  the 
third  time. 

7.  If  a  writ  of  right  is  to  be  brought  and  pleaded, 
this  jurisdiction  does  not  belong  to  the  dower,  nor  in- 
deed to  the  court  of  any  one  who  holds  only  for  term 
of  life ;  but  it  must  be  determined  in  his  court  of 
whom  the  plaintiff  claims  to  hold  the  tenements  de- 
manded by  homage,  although  he  may  hold  of  some 
other  person  by  fealty.  Neither  does  it  belong  to 
dower  to  have  authority  to  hold  view  of  frank-pledge, 
or  to  take  cognisance  of  pleas  <le  vetito  namio  or 
to  have  estray  or  waif,  or  the  correction  of  assises 
broken,  or  the  franchise  of  infangthef,  or  Avreck,  or 
any  regal  franchise  derived  from  the  prerogative 
of  our  Crown.  For  such  pleas  are  pleadable  by 
the  heir  and  his  bailiffs,  although  the  widows  be  en- 
dowed of  the  entire  manors  to  which  the  franchises 
belong, 

*8.  Dower  being  thus  assigned  to  widows  by  certain 
limits  and  bounds,  the  wardships,  marriages,  reliefs,  es- 
cheats, perquisites  of  courts,  and  pleas  of  their  tenants, 
and  all  manner  of  profits  issuing  out  of  the  dower,  shall 
belong  to  them,  unless  they  are  barred  by  some  special 
exception.  The  escheats  however  shall  be  theirs  only 
for  the  term  of  the  dower.  And  Avhereas  dower  ought 
to  be  absolutely  free,  the  widow  is  not  bound  to  dis- 
charge the  debts  of  her  husband,  but  that  lies  upon  the 
heir.  And  if  he  is  not  able  to  satisfv  our  debt,  or  to 
perform  our  service,  or  the  service  or  debt  owing  to  an- 
other which  the  ancestor  shall  have  acknowledged  in 


II,  *248  h.]       RECOVERY  OF  DOWER.  538 

our  court,  then  the  hand  must  be  extended  to  reach  the 
dower,*  If  any  one  refuses  to  allow  dower  to  the 
widow  of  his  own  accord,  she  must  be  aided  by 
plea. 


CHAPTER  IV. 

Of   the  Remedies  for  recovery  of  Dower. 

1.  Plea  of  dower  is  determinable  in  our  court,  and 
that  for  good  reason.  For  if  two  or  more  women 
should  contend  together  about  dower,  each  alleging  her- 
self to  have  been  the  espoused  wife  of  the  -deceased 
husband,  and  Ave  or  any  other  person  desired  to  be 
certified  which  of  them  all  was  his  lawful  wife,  *since 
one  only  can  be  so  at  one  time,  as  before  has  been  said, 
this  point  can  be  certified  only  by  the  court  Christian  ; 
and  therefore  if  any  other  than  ourselves  should  direct 
a  mandate  to  the  bishop  to  be  certified  upon  such  a 
question,  and  the  bishop  should  refuse,  no  one  except 
ourselves  would  have  any  jurisdiction  to  compel  the 
bishop  to  certify  against  his  will.  And  there  are 
several  other  reasons. 

2.  If  any  widow  then  would  complain  of  a  wrongful 

1  This  provision,  making  the  dower  to  some  extent  liable  for 
the  husband's  debts  in  case  of  the  deficiency  of  his  remaining 
property,  is  not  derived  from  Bracton  or  Fleta.  It  finds  how- 
ever some  svipport,  so  far  as  regards  debts  due  to  the  Crown,  in 
one  of  the  forms  of  writs,  qtiod  mulieres  non  distringaiitur,  given 
in  tlie  Register.  See  Regist.  Brev.  Orig.  f.  142  b,  143  ;  Fitzlier- 
bert,  Nat.  Brev.  150  Q  ;  Coke,  Litt.  31  a. 


534  BRITTOK  [II,  *i>4<). 

detaining  of  her  dower,  care  must  be  taken  to  examine 
narrowly  whether  the  wrong  is  done  to  her  by  the  heir 
or  by  any  other  person,  and  whether  by  detainer  of  all 
the  reasonable  dower  speciall}"^  named  in  the  original 
establishment,  and  whether  of  tenements  whereof  her 
liusband  was  seised,  or  of  tenements  of  tlie  ancestor  of 
her  husband  whereof  she  was  endowed  by  his  assent,  and 
whether  she  has  part  or  not ;  and  if  she  has  part, 
whether  the  deficiency  be  in  the  principal  subject,  or 
in  the  appurtenance.  On  each  of  these  points  there  lies 
a  different  remedy  ;  for  if  she  has  never  been  seised  of 
any  part,  and  the  establishment  made  upon  her  was  of 
reasonable  dower,  tljen  the  common  writ  of  dower  close, 
'  of  reasonable  dower  whereof  she  hath  nothing,'  lies. 
And  if  the  establishment  made  was  in  certain,  then 
there  is  remedy  by  anotlier  writ.  And  if  of  lands  of 
the  ancestor  by  liis  assent,  then  she  shall  have  a  different 
remedy.  *And  if  slie  has  part  of  the  tenement  and  de- 
mands the  residue,  then  the  writ  of  riglit  of  dower 
patent  pleadable  in  the  court  of  the  heir  is  in  place.  And 
if  she  has  her  reasonable  dower  of  tlie  principal,  but  is 
deforced  of  some  of  the  appurtenances,  then  the  writ  of 
dower  patent,  called  writ  of  dower  de  ratio/iahilijHirte 
mulieris,  lies.^ 

1  '  The  writ  of  dower,  unde  nihil  hahet,  and  the  two  posse.ssory 
writs,  de  dote  certa  and  de  dote  de  asseiisu  patns,  are  pleaded 
only  in  the  Bench  on  account  of  the  precept  to  the  bisliop.  But 
the  writs  of  right  are  pleadable  in  the  lord's  court,  because  the 
cause  of  dower,  that  is,  the  marriage,  cannot  be  denied  after  the 
plaintiff  has  been  recognized  as  lawful  wife  by  the  delivery  of 


II,  *249  b.l    RECOVERY  OF  DOWER.  535 

3.  If  several  deforceors  are  in  the  same  county,  they 
may  be  all  comprised  in  one  writ.  This  plea  is  real,  and 
pleadable  after  default  by  distresses  real,  as  by  Capers  ; 
and  essoins  are  allowed  on  the  first  day,  and  also  after 
each  appearance.  And  if  the  deforceor  makes  default 
after  essoin,  and  also  where  the  deforceor  has  vouched 
to  warrant,  and  not  caused  his  vouchee  to  be  summoned 
against  another  day,  the  petty  Cape  lies.  It  is  intended 
that  this  action  shall  be  the  most  favoured  of  any  of 
the  writs  of  possession  not  pleadable  by  assise,  and 
therefore  there  ought  to  be  greater  dispatch  therein. 

4.  The  most  common  writ  of  dower  is  the  writ  close 
whereof  the  widow  hath  nothing,  and  therefore  we 
ought  to  begin  with  that  writ ;  in  Avhich  the  count  is 
thus  :  '  This  sheweth  to  you,  Peronel,  who  was  the  wife 
of  John,  that  Peter  wrongfully  deforces  her  of  the 
third  part  of  so  much  land  with  the  appurtenances  in 
such  a  viil  to  her  damage  of  ten  pounds,  and  herein 
wrongfully,  in  that  the  aforesaid  John,  formerly  her 
lord,  endowed  her  thereof  at  the  church  door  on  the  day 
when  he  married  her,  as  he  that  lawfully  so  might  do, 
and  if  he  admit  this,  he  does  well,  *and  if  he  deny  it,  he 
denies  it  wrongfully,  for  she  hath  thereof  suit  good 
and  sufficient.' 

5.  When  the  widow  has  thus  declared  her  case,  if 
the  deforceor  will  not  say  anything  or  defend  himself, 

all  or  part  of  her  dower,  whether  this  was  done  by  plea  or  witli- 
out  plea.'  (Note  in  MS.  N.)  For  the  form  of  these  several 
writs,  see  Regist.  Brev.  Orig.  f.  3,  170  ;  Fitzherbert,  Nat.  Brev. 
«G,  148  A. 


636  BEITTON.  [II,  *250. 

he  shall  remain  in  mercy  as  undefended,  and  she  shall  re- 
cover her  demand  in  the  same  state  as  the  tenements 
were  on  the  day  that  her  husband  died,  and  also  her 
damages.  And  if  the  deforceor  defends  the  wrong  and 
force  and  the  damages  of  the  plaintiff,  and  so  on,  ac- 
cording to  the  proper  words  of  defence,  he  may  then  aid 
himself  several  wa\^s,  either  by  general  dilatory  excep- 
tions or  by  special  peremptory  exceptions,  as  will  after- 
wards appear. 


CIIAPTEK  V. 

Of  vouching  to  Warranty  in  Pleas  of  Doimr. 

1.  If  the  deforciant  vouches  to  warranty,  then  the  like 
process  shall  hold  as  shall  be  mentioned  of  wai-ranties 
in  a  plea  of  right,  so  far  as  regards  judgments  upon 
defaults.^  And  if  the  vouchee  appears  on  the  day  of 
the  summons  and  enters  into  warranty,  then  let  the 
contest  be  between  the  plaintiff  and  the  warrant ;  and 
in  the  meantime  the  tenant  may  remain  at  home  in  his 
possession  until  the  plea  of  warranty  is  determined,  for 
according  to  the  event  of  that  plea  the  tenant  shall  hold 
the  land  or  lose  it.  And  if  the  demand  be  of  dower 
which  was  named  in  certain  to  tlie  wife  upon  the  first 
establishment,  and  the  action  goes  against  the  tenant, 
the  widow  shall  ^recover  her  demand  in  full,  and  the 
tenant   to    the  value  from  the  warrant.     But    where 

1  The  passage  referred  to  is  not  found  in  Britten,  but  the  proc- 
ess is  stated  in  Bracton,  f.  384,  Fleta,  p.  411.  See  Introduction^ 
p.  xlii. 


II,  *250  b.-]    RECOVERY  OF  DOWER.  537 

reasonable  dower  is  demanded  it  is  not  so  ;  for  of  tli;it 
dower  the  widow  shall  recover  to  the  value  of  the  war- 
rant, and  the  tenant  shall  remain  in  tenancy  of  the  land 
demanded. 

2.  Although  the  warrant  be  under  age,  yet,  out  of 
favour  to  widows,  it  is  not  the  custom  or  law  that  the 
women  shall  wait  until  the  full  age  of  the  warrants, 
because  warranty  of  dower  is  not  so  prejudicial  to  heirs 
as  to  involve  disherison.  Nevertheless  such  tenants 
must  show  a  charter  or  deed,  whereby  the  court  may 
be  certified  that  the  infant  is  bound  to  warranty  by  his 
ancestor  ;  and  whether  the  demand  be  of  reasonable 
dower  or  of  dower  in  certain,  the  heir  shall  answer  of 
whatever  age  he  be.  And  if  the  widow  recovers  her 
demand,  and  the  heir  is  disposed  to  dispute  it,  he  may 
take  proceedings  when  he  comes  of  age.  And  so  lie 
may  possibly  regain  the  land  Avhich  he  himself  lost,  but 
if  he  cannot  do  so,  then  the  first  judgment  shall  stand. 

*3.  It  should  be  understood  that  in  every  judgment 
awarding  seisin  to  a  widow  plaintiff  of  reasonable 
dower  not  named,  the  corn  growing  and  the  grass 
mowed  are  always  to  be  excepted. 

4.  Although  the  infant  is  in  ward,  and  the  wardship 
aliened  from  one  to  another,  this  does  not  prejudice  the 
vouchor,  because  he  shall  always  vouch  to  warranty  the 
heir,  and  not  his  guardian  ;  but  the  guardian,  whoever 
he  be,  is  bound  to  produce  the  infant  in  court.  And 
what  has  been  said  with  regard  to  a  sole  heir  under  age, 
is  also  to  be  understood  of  several  heirs  under  age  who 
arc  parceners  and  considered  ms  on^  heir. 


538  BUITTON.  lU,*-2ol. 


CHAPTER  VI. 

Of  Exceptions  respecting  the  husband'' s  death. 

1.  Exceptions  may  arise  to  the  tenant  from  the  arti- 
cles in  the  writ.  For  where  as  it  is  said  in  the  writ, '  who 
was  the  wife  of  such  an  one,  formerly  her  husband,' 
the  tenant  may  answer,  that  he  was  formerly  her  hus- 
band and  is  so  still,  and  inasmuch  as  her  husband  is  still 
alive,  he  is  not  bound  to  answer  her  in  the  absence  of 
her  husband.  And  if  this  be  proved,  or  not  denied,  the 
action  is  at  an  end  ;  because  gifts  for  marriage,  as  is 
the  case  of  lands  given  in  marriage  and  establishments 
of  dower,  are  not  confirmed  until  the  death  of  the  hus- 
band. 

2.  If  the  wife  says  that  her  husband  has  taken  the 
habit  of  profession,  and  the  tenant  says  that  he  has 
not,  *tliis  must  be  certified  by  the  ordinary,  and  the 
original  plea  shall  be  in  the  meantime  respited.  And 
according  to  the  certificate  of  the  ordinary  let  judgment 
be  given. ^ 

1  '  Casus.  A  mail  takes  a  wife,  and  afterwards  goes  to  a 
foreign  counti'y.  and  there  enters  into  religion  and  is  professed. 
The  wife  brings  her  writ  of  dower.  The  tenant  answers,  that 
the  husband  is  alive  ;  and  she,  that  he  is  dead  in  law  (solum  ley 
de  terre),  and  sets  forth  how  and  in  what  place.     Qucestio,  quid 


II,  *251  k]     EXCEPTIONS  OF  DEATH.  539 

3.  If  she  says  that  her  husband  is  dead  by  natural 
death,  the  proof  sometimes  lies  upon  the  phiintiff,  if  the 
tenant  puts  her  upon  proving  the  same  ;  in  which  case 
he  shall  only  say  that  the  husband  is  not  dead.  For 
in  general  it  belongs  to  the  plaintiff  to  prove  his  case, 
unless  the  defendant  undertakes  to  prove  the  contrary. 
And  if  the  deforceor  says  that  the  husband  is  alive,  and 
that  he  is  ready  to  prove  tlie  same,  and  the  wife  only 
says  that  he  is  dead,  without  tendering  averment,  then 
the  proof  lies  on  the  tenant,  inasmuch  as  it  belongs  to 
the  person  excepting  to  prove  his  exception.  And  if  both 
undertake  the  proof,  it  is  for  the  one  to  prove  the  man 
to  be  alive  and  for  the  other  to  prove  that  he  is  dead, 
and  it  may  happen  that  both  parties  furnish  proof  of 
their  case  ;  but  then  credit  should  be  given  to  the  most 
reasonable  proof.  And  although  the  widow  proves 
her  husband  to  be  dead,  yet  seisin  of  dower  ought  not 
to  be  adjudged  to  her  without  further  answer  of  the 
tenant,  before  she  has  shown  how  she  is  entitled  and  has 
right  of  action  in  her  demand  ;  for  it  may  well  be  that 
she  has  no  right  to  demand  dowei". 

*4.  If  the  proof  be  found  insufficient  on  both  sides, 
in  such  case,  on  account  of  the  favour  granted  to  the 
widows,  judgment  ought  to  be  given  for  the  plaintiff ; 
but  on  this  condition  nevertheless,  that  if  her  husband 

juris?''  (Note  in  MS.  N.)  It  was  subsequently  held  that  if  a 
liusband  entered  into  religion  altliough  the  heir  succeeded  to 
the  inheritance,  the  wife  should  not  be  endowed  until  the  hus- 
band was  naturally  dead.  See  Coke,  Littleton,  f.  '6'3  b.  :  Perkins, 
Profitable  Book,  p.  61. 


540  BPJTTON.  [II,  *252. 

be  alive  and  be  produced  in  court,  the  wife  shall  restore 
the  dower  with  all  the  profits  in  the  meantime,  pro- 
vided she  can  find  such  security  to  perform  this  as  the 
court  shall  award  ;  and  if  not,  the  tenant  will  continue 
in  seisin  until  the  court  is  better  certified  of  the  hus- 
band's death.  The  plea  in  the  meantime  shall  be  sus- 
pended, and  renewed  by  resummons  when  there  shall 
be  occasion. 


CHAPTER  VII. 

Of  Exceptions  founded  on  the  invalidity  of  the  mar- 
riage, and  on  the  dower  established  heing  different 
from  that  claimed. 

1.  It  is  also  said  in  the  writ,  '  such  an  one  who  was 
the  wife  of  such  an  one.'  To  this  the  tenant  may 
answer,  that  she  never  was  his  wife,  inasmuch  as  she 
was  never  married  to  him,  but  he  had  her  as  his  con- 
cubine ;  or  if  she  was  married  to  him,  yet  she  never 
was  so  by  lawful  matrimony,  because  he  had  before 
married  another  who  was  living  at  the  time  he  married 
the  plaintiff,  so  that  if  she  was  his  wife,  she  was  so  in 
fact  only  and  not  in  lawful  form  by  reason  of  the 
other,  who  was  his  wife  in  law.  That  he  could  not 
have  two  wives  at  one  time  appears  by  the  definition 
*of  matrimony,  where  it  is  said,  that  matrimony  is  the 
union  of  a  woman  to  a  man,  and  not  of  women  to  men, 
but  in  the  singular.  And  if  several  women,  all  living 
at  the  same  time,  are  united  to  one  man,  yet  none  of 


n,  *252  J.]     INVALIDITY  OF  MAERIAGE.     541 

them  but  the  first  is  in  law  liis  wife ;  the  others  being 
so  in  fact  and  wrongfully. 

2.  Again,  although  she  was  his  lawful  wife,  yet  the 
tenant  may  say  that  she  ought  not  to  have  dower  by 
that  rule  of  law  which  says  that  the  marriage  subsist- 
ing action  of  dower  remains,  but  the  marriage  failing 
the  action  is  extinct,  and  a  divorce  was  pronounced 
between  her  and  her  husband,  whereby  the  marriage 
ceased,  and  consequently  her  action  to  demand  dower 
is  extinguished.  For  a  divorce  is  no  other  thing  but  a 
separation  of  bed  between  man  and  wife.  And  if  this 
be  verified,  or  not  denied,  the  wife  shall  not  recover 
any  dower.  To  this  the  widow  ma}'^  perhaps  answer, 
that  although  there  was  once  a  question  in  court  con- 
cerning a  separation  between  her  husband  and  her,  j^et 
it  never  came  to  judgment  in  the  lifetime  of  the  hus- 
band ;  or,  that  although  the  divorce  was  awarded,  yet 
she  appealed  against  the  award  ;  and  by  that  appeal  the 
award  was  annulled  and  repealed,  and  judgment  given 
for  the  wife ;  so  that  the  husband  was  seised  of  her  as 
his  wife  the  day  he  died,  and  she  of  him  as  her  hus- 
band. *To  which  the  tenant  may  say,  that  although 
she  appealed  from  such  award,  yet  still  she  ought  not 
to  have  dower,  because  the  husband  died  before  any 
judgment  was  given  in  the  plea  of  appeal. 

3.  Again,  the  tenant  may  say,  that  althouglishe  was 
his  lawful  wife,  yet  she  ought  not  to  have  dower,  be- 
cause she  was  never  solemnly  married  at  the  church 
door,  and  consequently  dower  was  never  established 
upon  her  there.     And  if  this  be  verified,  she  shall  not 


642  BRITTON.  [II,  *253. 

recover  any  dower  on  account  of  the  words  of  the  writ, 
'  at  the  church  door.' 

4.  If  the  Justices  would  be  certified  concerning  anv 
divorce,  they  must  be  certified  by  letters  of  the  ordi- 
nary ;  for  the  cognizance  thereof  belongeth  not  to  the 
lay  court, —  no  more  than  of  matrimony,  since  the  one 
depends  upon  the  other.  Therefore  in  such  case  our 
Avrit  must  be  directed  to  the  ordinary  of  the  place,  that 
after  calling  the  parties  and  other  necessary  persons, 
he  do  inquire  the  truth  of  the  matter,  and  according  as 
he  shall  find  certify  the  same  to  the  Justices.  In  such 
case  the  ordinary  ought  to  cause  the  tenant  who 
propounded  the  exception,  in  whatever  diocese  he  re- 
sides, to  be  summoned  to  be  at  a  certain  day  and  place 
before  him  to  show  whether  he  can  or  will  say  anything 
against  the  marriage.  And  after  he  has  been  solemnly 
summoned,  ^whether  he  come  at  the  day  or  not,  lot 
the  widow's  proof  by  the  witnesses  she  shall  produce  be 
admitted,  so  as  such  witnesses  be  not  liable  to  chal- 
lenge ;  and  such  proof  being  solemnly  admitted  upon 
the  oath  of  the  witnesses,  let  the  ordinary  forthwith 
according  to  the  inquest  make  a  return  to  the  Justices 
of  the  fact  as  found  ;  and  in  such  case  no  appeal  lies 
by  any  of  the  parties,  that  the  plea  in  our  court  may 
not  in  any  way  be  longer  delayed. 

5.  But  now  it  may  be  asked,  whether  if  a  man  kept 
a  mistress  in  concubinage,  and  begot  a  child  by  her, 
and  afterwards  secretly  married  her  elsewhere  than  at 
the  church  door,  and  after  such  marriage  had  another 
child  by  her,   and  then  publicly   married  her   at   the 


II,  *253J.]     INVALIDITY  OF  MARRIAGE.     543 

church  door,  and  there  endowed  her,  and  after  that  had 
a  third  child  by  her,  which  of  these  children  would  be 
admissible  to  the  succession  of  the  inheritance  of  the 
father,  and  by  reason  of  which  of  them  the  mother 
shall  be  entitled  to  dower  after  the  decease  of  the 
father.  The  answer  in  such  case  is  that  the  middle 
son  ought  to  be  admitted  to  the  succession  of  the  in- 
heritance of  the  father,  and  shall  be  accounted  legiti- 
mate in  respect  of  his  birth,  although  the  marriage 
Avas  secret,  provided  he  can  aver  that  he  was  born 
within  wedlock,  whether  the  espousals  were  publicly 
or  privately  performed.  *  And  yet  the  mother  shall  not 
have  dower  by  reason  of  that  child,  but  she  shall  not 
have  it  by  reason  of  the  third  son,  and  of  the  solemn  es- 
pousals wherein  she  was  endowed  at  the  church  door. 
Hence  it  appears,  and  true  it  is,  that  sometimes  the 
mother  shall  not  have  dower,  although  the  son  may  be 
admissible  to  the  succession  of  the  inheritance  of  his 
father,  and  that  no  right  ever  accrues  to  any  woman 
to  demand  dower,  unless  it  was  established  to  her  at 
the  church  door,  and  this,  whether  in  a  time  of  in- 
terdict or  not.i 

6.  When  the  ordinary  has  solemnly  performed  the 
duty  of  his  office  with  regard  to  the  making  of  the  in- 
quest upon  the  points  comprised  in  our  mandate,  and 
has  thereupon  made  his  return  and  certified  us  or  our 
Justices,  the  tenant  at  the  instance  of  the  plaintiff  shall 

1  The  meaning  seems  to  be,  that  though  there  was  an  interdict 
upon  the  ceremonies  of  the  church,  dower  could  still  be  '  estab- 
lished '  at  the  church  door.     Compare  Bracton,  f.  304. 


544  BRITTON.  [II,  *  254. 

then  be  resummoned,  that  he  be  before  our  Justices  at 
a  certain  day  and  place.  At  which  day  tlie  parties  may 
be  essoined.  And  if  the  tenant  make  default,  and  the 
resummons  be  proved,  let  the  land  demanded  be  forth- 
with taken  into  our  hand  by  the  petty  Cape,  and  let 
him  be  again  summoned  to  appear  at  another  day  to 
hear  his  judgment. 

7.  If  the  tenant  dies  before  he  is  resummoned,  the 
widow  must  revive  her  action  by  a  fresh  writ  against 
the  new  tenant ;  and  if  the  aforesaid  exception  be 
again  alleged,  it  will  not  be  necessary  to  send  it  again 
^before  the  court  Christian,  after  judgment  has  once 
passed  in  her  favour,  but  it  is  sufficient  to  prove  the 
marriage  in  court  Christian  once  for  all.  Therefore 
that  exception  will  thenceforth  be  of  no  avail  in  the 
mouth  of  any  one  ;  but  some  other  defence  must  be 
made,  or  the  widow  shall  recover  her  demand.  In  like 
manner  if  a  woman  demands  a  man  as  her  husband, 
and  judgment  is  pronounced  for  the  woman  in  court 
Christian,  whether  the  man  has  appealed  from  the 
judgment  or  not,  yet  if  he  dies  before  the  judgment 
is  reversed,  the  woman  shall  recover  dower,  and  that 
judgment  shall  for  all  future  time  be  a  sufficient  proof 
of  the  marriage. 

8.  If  the  tenant  by  way  of  exception  says  that  she 
never  endowed  at  the  church  door  in  the  manner  she 
has  declared  in  her  count,  and  the  widow  says  the  con- 
trary, the  truth  may  be  inquired  by  the  country.  And 
if  she  omits  the  words  '  at  the  church  door,'  the  writ  is 
abatable  for  the  defect  in  the  count.     And  if  the  widow 


II,  *254  b.-]     INVALIDITY  OF  MARRIAGE.     545 

demands  more  than  was  at  first  established  upon  lier 
at  the  church  door,  although  her  husband  from  some 
foolish  fondness  afterwards  increased  it,  she  shall  not 
be  entitled  to  be  answered  in  respect  of  that  increase. 
^For  as  dower  was  appointed  her  at  the  cliurch  door, 
whether  in  specie,  or  of  the  third  part,  and  so  not  in 
specie,  in  that  form  dower  shall  be  'assigned  to  her, 
and  she  has  an  action  to  demand  so  much,  and  no 
more,  if  she  be  deforced  thereof. 

9.  If  the  widow  demands  dower  named,  as  being 
that  which  was  established  upon  her  at  the  church 
door  in  certain,  and  the  tenant  says  in  answer,  that 
she  wrongfully  demands  dower  named,  inasmuch  as  at 
the  establishment  she  was  endowed  only  of  reasonable 
dower,  and  therefore  uncertain,  or  of  the  third  part  of 
something  certain  ;  in  such  case  the  proof  lies  on  the 
widow  ;  and  if  the  tenant  expressly  tenders  averment 
-of  the  negative,  then  it  shall  belong  to  him  to  prove 
his  exception,  as  well  as  to  the  widow  to  prove  her 
case.  And  if  the  widow  produces  witnesses  who  were 
present  at  the  establishment,  or  tenders  a  writing 
which  was  made  to  her  thereof  on  the  da}'^  of  the 
establishment,  and  the  tenant  offers  nothing  but  aver- 
ment by  the  country,  in  such  case,  as  well  as  in  cases 
where  the  death  of  the  husband  is  to  be  proved,  the 
widow's  proof  shall  be  more  admissible  and  of  greater 
weight  than  that  of  the  tenant.  But  if  the  widow 
brings  her  witnesses,  and  none  of  them  were  present 
at  the  establishment  of  the  dower,  or,  in  the  other 
case,  at  the  burial  of  the  husband,  her  proof  is  in 
35 


5ir>  BEITTON.  [II,  *255. 

neither  case  to  be  admitted  against  the  suit  of  the 
tenant.  And  if  neither  of  them  tenders  suit,  but 
simply  averment  by  the  country,  in  such  case  let  the 
truth  be  inquired  by  the  country. 


^CHAPTER   VIII. 

Of  the  pleadings  where  several  women  claiTn  dower  of 
one  husband. 

1.  If  several  women  at  one  time  demanded  dower 
by  the  establishment  of  a  single  husband,  an  exception 
thereby  arises  to  the  deforciant,  that  he  ought  not  at 
the  same  time  to  answer  several  women  demanding 
dower  by  reason  of  the  death  of  one  man. 

2.  If  one  woman  has  recovered  dower,  and  another 
demands  it,  a  distinction  must  then  be  made,  whether 
the  plaint  is  against  the  tenant  alone  or  against  him 
and  the  wife  endowed,  she  having  vouched  the  tenant 
to  warrant.  For  if  the  tenant  has  entered  into  war- 
ranty, then  the  warrant  is  bound  to  defend  the  vouch- 
eress  against  the  plaintiff.  And  if  he  has  not  yet  entered 
into  warranty,  then  the  dower  may  answer  by  herself  to 
the  following  effect :  that  the  plaintiff  ought  not  to  have 
dower,  nor  any  one  except  herself,  forasmuch  as  she 
was  the  espoused  wife  of  him  of  whose  death  she  is 
endowed,  and  was  seised  of  him  as  of  her  husband  at 
the  time  when  he  died,  andshe  was  therefore  endowed, 
and  that  rightfully .^     To  which  the  plaintiff  may  in 

^  In  Bracton  this  pleading  is  given  as  that  of  the  warrant,  who 
is  there  called  tenant.  In  Fleta,  as  here,  it  is  the  pleading  of 
the  woman  endowed,  and  she  is  called  tenant,  mulier  tenens. 


II,  *255  h.]    PLEADINGS  OF  WOMEN.  547 

answer  say,  that  tbe  tenant  saith  wrongfully,  for  she 
was  not  his  wife,  as  plainly  appears,  inasmuch  as  this 
same  plaintiff  heretofore  impleaded  the  same  husband 
in  court  Christian  *and  demanded  him  as  her  husband 
in  such  a  place  and  before  such  judges,  and  in  the  pres- 
ence of  the  same  tenant  deraigned  him  as  her  husband, 
on  which  occasion  she  did  not  make  any  counterclaim 
or  opposition.  And  if  the  tenant  does  not  deny  this, 
the  plaintiff  shall  recover  dower  of  that  which  she 
holds.  But  if  she  denies  it  b}'-  affirmation  or  negation, 
a  doubt  arises,  which  must  be  ascertained  by  inquiry 
of  the  ordinary,  and  according  to  his  return  the  parole 
shall  be  continued  by  resummons,  and  judgment  given ; 
and  pending  the  plea  in  court  Christian,  the  original  plea 
shall  be  at  rest.  And  if  replication  be  made  of  an 
appeal  and  judgment  reversed,  the  effect  shall  be  as  is 
above  mentioned  concerning  such  a  replication. 

3.  Again,  if  the  tenant  in  dower  says  only,  by  way 
of  exception,  that  the  plaintiff  cannot  be  his  w^ife  be- 
cause she  held  her  tongue  when  she  ought  to  have 
claimed  her  husband,  as,  when  the  banns  of  the  second 
marriage  were  three  times  solemnly  asked  in  the  church 
where  she  was  present,  upon  the  negation  of  the  tenant 
both  of  them  shall  be  sent  to  court  Christian  in  order 
that  the  Justices  may  be  certified  upon  this  question, 
which  of  them  was  the  wife  of  the  husband  in  law, 
and  which  only  in  fact ;  and  according  to  the  certifi- 
cation of  the  ordinary  judgment  shall  be  given. 

4.  Although  one  of  the  women  was  lawfully  his  wife, 
yet  her  right  may  be  lost  by  default  of  evidence,  as 


548  BRITTON.  [II,  *256,  256  h. 

where  she  was  married  out  of  our  jurisdiction.  Also 
by  negligence  in  her  claim.  *as  where  the  rightful  wife 
never  disputed  the  second  contract  in  the  lifetime  of 
her  husband  who  abandoned  her ;  in  which  case  her 
right  of  action  is  lost,  and  she  ought  not  to  have  dower, 
especially  if  the  second  wife  remained  with  the  husband 
until  his  death.  And  in  like  manner  her  action  is  lost, 
even  though  she  disputed  the  second  marriage,  if  the 
husband  died  in  the  arras  of  the  second  wife  before 
judgment  of  divorce.  But  in  all  these  cases  the  first 
wives  shall  have  dower,  if  their  children  are  able  to 
recover  the  succession  of  their  father's  inheritance. 


CHAPTER  IX. 

Of  Exceptions  relating  to  the  Assent  of  the  Father. 

1.  Sometimes  writings  are  made  of  the  establishment 
of  dower,  and  that  wisely  ;  for  if  such  writings  are  pro- 
duced at  the  trial,  the  wife's  demand  can  be  more  clearly 
made  out.  And  if  they  should  be  denied,  this  doubt 
may  be  tried  and  their  legality  proved  by  comparison 
of  seals,  by  the  witnesses  named  in  the  writings,  by 
the  country,  or  in  several  other  ways.  But  of  all 
establishments  of  dower,  there  is  most  need  of  writing 
where  the  assent  of  a  third  party  has  concurred.  *The 
writing  may  however  be  so  made  as  to  be  useless  in 
proving  the  wife's  case  ;  for  if  it  is  said,  that  her  hus- 
band endowed  her,  and  the  assent  of  the  possessor  of 
the  land  is  not  mentioned,  the  writing  will  not  avail  in 


IT,  *257.]       ASSENT  OF  THE  FATHER.  549 

evidence  of  her  demand.  So  likewise,  if  it  is  stated  in 
the  writing,  that  some  other  person  than  the  husband 
endowed  her. 

2.  It  is  necessary  therefore,  that  in  every  such 
writing  these  points  should  be  specially  mentioned, 
that  the  husband  endowed  the  wife  at  the  church  door 
of  the  third  part  of  his  father's  land,  or  of  that  of 
some  other  kinsman  or  friend,  and  that  the  same  friend 
or  kinsman  assented  in  the  same  place  and  at  the  same 
time.  And  although  the  writing  be  made  elsewhere, 
yet  in  order  that  it  may  be  of  effectual  value,  it  should 
be  granted  and  confirmed  by  assent  at  the  church  door, 
or  the  endowment  will  be  worth  nothing,  if  the  friend 
choose  to  dispute  it.  on  account  of  the  expression  in  the 
writ,  '  at  the  church  door.'  By  this  reasoning  it  ap- 
pears, and  it  is  true,  that  a  woman  shall  not  recover 
dower  against  the  will  of  the  tenant,  unless  she  make 
it  appear  by  writing,  or  by  witnesses  present  at  the  es- 
tablishment and  at  the  marriage,  or  by  the  country, 
that  these  two  things  concurred  at  the  marriage, 
namely,  an  establishment  of  dower  by  the  husband  and 
an  assent  of  that  friend,  or  his  ancestor,  of  whose  land 
she  demands  *dower,  and  that  he  assented  to  the  en- 
dowment, whether  there  be  writing  or  not,  at  the  church 
door  ;  for  an  assent  at  any  other  place  is  useless. 


550  BRITTON.  [II,  *257. 


CHAPTER  X. 

Of  common  Excejptions  in  Actions  of  Dower. 

1.  To  those  words  in  the  writ  '  whereof  she  hath 
nought,'  the  tenant  may  answer  that  she  hath  part. 
But  then  it  will  be  necessary  to  distinguish,  whether 
the  plaintiff  has  received  part  of  her  dower  before  the 
purchasing  her  writ  or  after.  For  if  after,  although 
from  the  same  deforceor  of  whom  she  complains,  and 
in  the  same  vill  named  in  the  writ,  yet  the  writ  is  not 
thereby  abatable  ;  for  she  may  say  that  satisfaction  was 
made  to  her  for  the  difference ;  ^  but  if  she  received 
part  before  the  writ  was  purchased,*^  then  the  writ  is 
abatable ;  and^no  writ  shall  lie  but  the  writ  patent 
upon  the  right. 

2.  Again,  the  deforceor  may  say  that  the  plaintiff 
ought  not  to  have  dower,  for  that  her  husband  did  not 
hold  the  tenement,  whereof  she  claims  dower,  in  de- 
mesne either  on  the  day  on  which  he  married  her  or 

^  That  is,  she  may  say  by  way  of  replication,  that  at  tlie  time 
of  purchasing  the  writ  she  had  nothing  of  her  dower,  but  that 
an  assignment  has  since  been  made  to  her  in  satisfaction  of  part 
of  her  demand.     Compare  Bracton,  f.  311  &. 

'^  This  must  be  understood,  if  the  part  was  received  from  the 
same  deforciant  and  in  the  same  vill.  See  Statute  of  West- 
minster i.  c.  49  ;  Fleta,  p.  347  (§  4). 


II,  *257 1.]       ACTIONS  OF  DOAVER.  551 

afterwards,  or  that  if  he  did  hold  it  in  demesne,  yet 
he  could  not  endow  her,  as  he  had  no  fee  therein.  But 
if  her  husband  had  the  fee  of  any  tenement  which  was 
to  return  to  him  or  his  heirs  on  the  death  of  some  per- 
son *who  held  it  for  term  of  life,  in  all  such  kinds  of 
tenements  although  the  freehold  was  aliened  before 
the  Imsband  married  her,  a  wife  may  demand  dower  if 
she  was  endowed  thereof  at  the  church  door. 

3.  Again,  he  may  say  that  she  ought  not  to  have 
<]o\ver  by  reason  that  her  husband  was  a  felon  and  suf- 
fered judgment  of  felony,  for  which  he  was  hanged,  or 
beheaded,  or  buried  in  the  sands,  or  dismembered,  or 
drowned,  or  condemned  to  some  other  death,^  or  ab- 
jured the  realm,  or  was  outlawed ;  in  which  case  the 
record  must  be  vouched  to  warrant.  And  wlien  the 
record  is  produced,  the  widow  may  dispute  the  record 
unless  it  is  proved  by  some  one  authorised  by  us  to 
bear  record.  For  she  may  say  that  some  one  out  of 
hatred  caused  her  husband  to  be  hanged,  when  in  fact 
he  was  never  found  guilty  of  any  felon\'^,  and  that  this 
act  was  done  by  such  an  one,  and  by  certain  others  who 
coloured  his  death  with  a  sort  of  judgment.  And  if  this 
be  verified  by  the  country,  the  widow  ought  not  b}'  such 
a  wrongful  judgment  to  be  barred  of  her  dower,  nor 
the  heir  of  the  succession  to  the  inheritance.  So  neither 
where  the  felony  did  not  amount  to  12d,  nor  where  the 
outlawry  was  pronounced  before  the  fourth   county 

^  As  to  the  various  modes  of  execution  mentioned  above,  and 
the  places  where  tliey  were  customary,  see  Hengham  Parva, 
p.  87,  and  Selden's  notes  thereupon. 


552  BRITTON.  [II,  *258, 

court  or  pronounced  in  any  other  county  than  in  that 
where  the  offence  was  supposed  to  have  been  committed. 
Nor  in  any  case  where  a  lawful  defence  may  be  made 
to  the  outlawry.  Nor  in  any  case  of  judgment  of  death, 
*where  the  supposed  felony  is  found  on  examination  to 
be  a  trespass  and  not  felony,  nor  in  the  case  of  abjura- 
tions for  trespass,  as  in  parks  or  fishponds,  or  other 
like  trespasses. 

•i.  Although  the  husband  suffered  judgment  of  fel- 
ony and  that  deservedly,  yet  she  may  say  that,  not- 
withstanding: this,  she  ouo;ht  not  to  be  barred  of  her 
demand,  for  at  the  time  he  committed  his  felony  she  was 
not  united  with  him  nor  married  to  him,  neither  was 
assenting  or  privy  thereto.  And  inasmuch  as  the  wife 
of  a  felon  ought  not  to  lose  her  dower,  except  by  rea- 
son that  she  ma^^  be  fairly  supposed  to  know  of  the 
felony  of  her  husband,  and  even  then  slie  is  not  bound 
to  accuse  him,  therefore,  where  the  felony  was  not 
committed  during  the  time  that  she  was  his  wife,  she 
ougfht  to  have  dower  of  the  lands  of  the  heir  which 
are  in  the  custody  of  his  lord.^ 

1  These  last  words  should  apparentl}^  be  understood  of  the 
felon's  lands  escheated  to  tlie  lord.  '  A  man  commits  a  felony 
which  is  not  discovered  ;  afterwards  he  purchaseth  land,  and 
afterwards  taketh  a  wife,  Although  he  be  sentenced  for  the 
felony,  the  wife  shall  recover  dower.  Dubium  tamen  est,  quia 
quicquid  acquiritur  inter  feloniani  commissam  et  ipsius  felonise 
convictionem,  fit  ac  si  ante  feloniam  perpetratam  propter  coii- 
victionem  ob  quam  nomen  felonis  subibit.'  (Note  in  MS.  N.)  I 
do  not  find,  that  in  later  times  an  exception  was  made  in  favour 
of  the  wife  of  a  felon,  when  the  crime  was  committed  before  the 


II,  *258.]  ACTIONS  OF  DOWER.  553 

5.  The  widow  shall  not  liave  her  reasonable  dower 
unless  she  can  aver  by  the  country  or  in  some  other 
manner,  that  she  was  capable  of  deserving  dower  in 
the  lifetime  of  her  husband,  whether  she  be  a  maid  or 
not,  and  though  she  be  twenty  or  a  hundred  years  ohl  ; 
nor  where  the  husbands  died  so  young,  or  in  any  othei* 
such  condition  as  to  be  incapable  of  consenting  to 
matrimony.^  They  are  not  however  barred  from  re- 
marriage. See  Perkins,  Profitable  Book,  s.  387  ;  and  compare 
Coke  Litt.  31  a. 

1  It  would  appear  from  the  above,  that  reasonable  dower  could 
not  be  claimed  unless  the  husband  was  of  an  age  before  his 
death  to  consent  to  the  marriage.  This  was  not  the  rule  of  later 
times.  '  If  the  wife  be  past  the  age  of  nine  yeares  at  the  time  of 
the  death  of  her  husband,  she  shall  be  endowed,  of  what  age 
soever  her  husband  be,  albeit  he  were  but  four  yeares  old.' 
(Coke  Litt.  33  a.)  And  I  do  not  find  any  authority  for  tlie 
doctrine  of  the  text  in  Bracton  or  Fleta.  The  former  says  that 
the  minority  of  the  husband  or  the  wife  did  not  impede  dower, 
provided  the  wife  was  of  ability  '  dotem  promereri  et  virum  sus- 
tinere.'  (Bracton  f.  92.)  And  Fleta  fixes  the  required  age  of 
the  wife  at  nine  years  and  a  half.  (Fleta,  p.  340,  c.  23,  §  3,  348, 
g  9  ;  compare  Littleton,  Ten.  s.  36  ;  Coke  Litt.  33  a.)  But  the 
doctrine  of  Britton  is  supported  by  Hengham  (Hengham  Parva, 
J).  88);  and  by  the  Register,  where  it  is  said,  that  a  woman  will 
lose  her  dower  if  her  husband  die  under  age.  (Regist.  Brev. 
Orig.  170.)  And  the  annotator  in  MS.  N.  says  tliat  in  all  cases 
where  the  husband  was  incapable  of  consenting  to  the  marriage, 
either  because  he  was  '  infra  annos  nubiles,  i.  e.  ad  xiiii.  annos.' 
or  from  any  other  cause,  although  there  was  no  default  in  tlio 
wife,  she  should  not  have  dower.  So.  it  is  said  to  have  been 
held  in  the  13th  Edw.  I.,  that  a  wife  would  lose  her  dower  if  her 
husband  died  under  nine  years.     (Fitzh.  Abr.  Dower,  172,  citing 


554  BRITTON.  [TI,  *258 />. 

covering  other  kinds  of  dower.  Neither  ought  a 
widow  to  recover  dower  intheadvowson  of  any  church 
in  whole  or  in  part,  unless  she  can  aver  that  she  was  en- 
dowed thereof ;  *and  still  she  may  be  barred  by  negli- 
gence, if  she  afterwards  Avithout  question  or  claim 
permitted  the  heir  of  her  husband  or  some  other  in  his 
name  to  present  after  the  death  of  her  husband.  And 
if  the  writ  be  obtained  against  the  heir  and  the  guarch'an 
jointly,  the  writ  falls  if  it  be  challenged,  because 
the  guardian  must  always  be  summoned  to  ])roduce 
the  infant  whom  the  plaintiff  alleges  to  be  in  his  ward. 
0.  Again,  the  tenant  may  say  that  the  plaintiff  has 
forfeited  and  lost  dower  by  arlultery,  inasmuch  as  she 
left  her  husband  after  he  married  her  for  the  bed  of 
anotiier,  by  which  act  she  forfeited  her  dower.  If  to 
this  the  Avife  replies  that  it  ought  not  to  bar  or  affect 
her  because  she  was  afterwards  reconciled  to  him,  so 
that  he  received  her  again,  and  in  her  seisin  died,  the 

13  Ed.  I.  Iter  North.  ;  but  qu.  wlietlier  it  should  not  be  read  ele 
for  il ;  that  is,  if  the  wife  died  under  nine  years.)  In  12  Ric.  II. 
dower  was  allowed  where  the  husband  was  ten  years  of  age,  and 
tlie  wife  eleven  at  his  death.  Fitzh.  Abr.  Dower.  54.  The 
clause  which  follows  in  the  text  refers  apparently  both  to  the 
wives  of  infants,  and  to  widows  of  tender  age,  who,  as  it  seems, 
might  claim  dower  certain,  but  not  '  reasonable  dower.'  '  Al- 
though the  wife  be  not  of  ability  to  deserve  dower,  yet  she  shall 
have  it,  provided  that  the  assent  of  the  husband  was  given  at 
their  espousals ;  because  establishment  of  dower  is  a  kind  of 
purchase  which  is  not  forbidden  by  the  nonage ;  and  is  there- 
fore permissible.'  (Note  in  MS.  N.)  This  distinction -is  also 
found  in  Hengham,  but  does  not  appear  to  have  been  recognized 
in  later  times.     Compare  Coke  Litt.  33  a. 


11, -^259.]  ACTIONS  OF  DOWER.  555 

tenant  may  say  in  answer  that  notwithstanding  this 
she  still  ought  not  to  have  dower,  for  that  he  did  not 
receive  her  of  his  own  accord,  but  against  his  will  by 
coercion  of  Holy  Church  and  by  sentence  of  court 
Christian.  And  if  this  be  proved,  the  plaintiff  shall 
take  nothing. 

7.  If  the  widow  brings  her  plaint  against  the  heir, 
he  may  answer  thus,  that  he  is  bound  to  warrant  her 
dower  to  her  in  case  she  was  endowed  and  was  im- 
pleaded of  her  dower,  provided  he  has  the  charters 
delivered  to  him,  which  were  his  ancestor's,  and  which 
she  detains  from  him  ;  for  otherwise  he  may  perhaps 
lose  his  inheritance ;  so  that  he  was  never  against  as- 
signing her  dower,  provided  she  would  have  delivered 
up  to  hi  in  the  *charters  which  belong  to  him,  relating 
to  his  inheritance.  And  if  he  can  verify  this,  let  it  be 
awarded  that  the  widow  restore  the  charters,  and  that 
he  assign  and  deliver  to  her  her  tluwer  ;  and  the  widow 
shall  remain  in  mercy  for  her  false  })laint. 

8.  Again,  the  tenant  may  say  that  she  ought  not  to 
be  endowed,  for  that  she  was  once  impleaded  of  part 
of  the  dower  which  she  holds,  and  whereas  she  ought 
to  have  vouched  him  as  the  warrant  of  her  dower,  she 
vouched  another,  such  an  one  by  name,  in  disherison 
of  the  right  heir.  And  if  the  right  heir  can  verify 
this,  she  has  forfeited  all  recovery  of  the  residue  of 
her  dower  for  her  malice. 

9.  Or  he  may  say  that  she  wrongfully  complains, 
forasmuch  as  satisfaction  was  made  to  her  for  her  dower 
■by  the  value  in  land  or  money,  wherewith  she  was  con- 


556  BKITTON.  [II,  *259  h. 

tented.  And  if  the  wife  admits  the  agreement,  or 
does  not  deny  it,  but  replies  that  satisfaction  was  never 
fully  made  to  her,  the  demand  of  dower  shall  thereby 
cease,  and  she  may  proceed  by  writ  of  covenant  if 
she  thinks  proper.  Or  he  may  say  that  heretofore  she 
recovered  dower  against  him  of  the  same  tenements 
by  a  like  Avrit,  and  if  this  be  verified  or  not  denied,  the 
last  writ  shall  fall,  and  the  wife,  if  she  pleases,  may 
sue  judgment  on  the  former  writ. 

10.  It  may  also  happen  that  several  wives  at  one 
time  demand  dower  of  the  endowment  of  one  husband, 
whereas  they  ought  not  all  to  be  endowed,  *for  one  only 
was  his  lawful  wife,  and  she  ought  to  obtain  the  dower. 
But  which  was  his  lawful  wife  and  which  his  concubine,, 
no  secular  judge  can  inquire,  for  the  cognizance  of  mar- 
riage and  of  testaments  belongs  to  the  court  Christian  ; 
and  so  long  as  there  is  a  dispute  between  two  or  more 
wives,  dower  is  not  to  be  allowed,  until  it  be  proved  in 
court  Christian  which  of  them  was  the  lawful  wife  of 
the  husband. 

11.  So  where  the  lawful  heir  brings  an  action  for  his 
inheritance  and  the  w-ife  for  her  dowser  at  the  same  time, 
dower  is  not  to  be  granted  until  the  plea  relating  to  the 
succession  is  determined,  on  account  of  the  inconvenience 
which  might  ensue.  For  if  two  wives  who  are  contend- 
in  jr  about  their  dower  were  to  be  sent  into  court  Chris- 
tian,  there  to  determine  which  of  tliem  was  the  law'ful 
wife  of  the  husband,  and  which  his  concubine,  it  might 
perhaps  fall  out  that  she  should  prove  herself  to  be  the 
lawful  wife,  who  was  not  the  mother  of  him  who  might 


n,  *260.]  ACTIONS  OF  DOWER.  557 

prove  himself  in  our  court  to  be  the  hiwful  heir,  and 
that  the  son  of  her  who  in  tlie  court  Ciiristian  was 
found  a  concubine,  might  prove  himself  in  our  court 
the  lawful  heir.  Therefore  in  the  above  case  where 
several  heirs  are  disputing-  about  their  inheritance  and 
several  wives  about  their  dower,  it  is  proper  that  the 
pleas  of  dower  should  be  suspended  until  it  be  decided 
in  our  court  to  whom  the  succession  is  to  be  adjudged. 
And  accordingly,  in  the  like  *case  of  a  dispute  between 
two  clerks  in  court  Christian,  the  prohibition  by 
Indicavit  was  first  provided,  to  cause  the  ]>lea  in  court 
Christian  to  be  suspended,  until  the  question  between 
the  patrons  be  decided  in  our  court,  by  reason  of  the 
risk  which  might  arise  to  one  of  the  alleged  patrons  in 
respect  of  the  advowson,  if  the  plea  in  court  Christian 
between  the  clerks  was  determined  before  that  between 
the  laymen  concerning  the  advowson.  And  as  soon 
as  the  heir  has  recovered  his  inheritance  let  dower  be 
iissigned  to  his  mother,  but  without  awarding  any 
damages  foi'  the  delay,  inasmuch  as  the  delay  was 
warranted  by  the  court,  and  did  not  proceed  from  the 
wrongful  act  of  the  heir.  And  when  the  heir  is  thus 
inseisin  of  the  inheritance,  whether  rightfully,  or  wrong- 
fully and  the  wife  endowed,  and  another  wife  comes  and 
demands  dower,  and  her  son  demands  tiieinheritanc*', 
in  such  case  let  tlie  wife  be  told  that  she  should  first 
cause  her  son  to  be  proved  lawful  heir,  and  that  then, 
and  not  before,  she  shall  be  answered  as  to  her  dower. 
12.  Whether  the  wife  who  demands  dower  has  a 
child  or  not,  that  person  is  always  the  warrant  of  her 


558  BRITTON.  [II,  *260  b. 

dower  to  whom  the  dower  ought  to  revert  after  the 
death  of  the  wife,  whether  it  be  the  heir  or  the  chief 
lord,  .to  whom  the  two  other  parts  are  escheated  in 
any  way  either  by  failure  of  blood,  or  perhaps  for 
felony,  or  b}''  reversion.  There  is  a  case  however  ex- 
cepted, where  a  wife  recovers  dower  of  one  who  was 
enfeoffed  by  the  husband  or  his  heir,  *the  heir  having 
nothing:  left  whereout  he  could  Avarrant  the  dower  or 
make  satisfaction  in  value  ;  in  this  case  such  dower 
shall  revert  to  him  from  whom  it  came,  and  yet  he  shall 
not  be  warrant  of  the  dower. 

13.  Or  he  may  say  that  she  ought  not  to  have  dower, 
because  her  husband  had  not  any  right  in  the  land,  in- 
asmuch as  it  was  the  inheritance  or  the  estate  in  mar- 
riage of  his  first  wife.  Or  thus  :  because  she  of  her 
own  accord  and  by  her  free  will  in  her  absolute  widow- 
hood released  and  quitclaimed  all  the  right  which  she 
had  or  might  have  in  her  dower.  Or  thus  :  for  that 
she  is  his  nief  holding  of  him  in  villenage  as  an  astrer,^ 
and  he  seised  of  her  and  of  her  chattels  and  her  suit.  Or 
thus  :  for  that  the  husband  lost  the  tenement  by  judg- 
ment as  the  right  of  another.  Or,  for  that  by  the 
custom  of  the  country  no  widow  was  ever  wont  to  be 
endowed  unless  there  were  writings.  Or,  for  that  the 
husband  never  in  his  lifetime  had  fee  or  demesne  in 
the  tenement  whereof  she  demands  dower.  Or,  for 
that  the  tenant  was  heretofore  acquitted  by  judgment 
of  the  same  demand  at  the  suit  of  the  same  plaintiff. 
Or,  for  that  he  held  nothing  in  the  tenement  whereof 
1  See  p.  456,  note. 


II,  *261.]  ACTIONS  OF  DOWEK.  559 

she  Uemands  dower  on  the  day  of  the  writ  purchased, 
or  since.  Or,  for  that  he  does  not  claim  any  freehold 
therein,  but  holds  it  in  another's  risht  as  guardian  or 
bailiff  or  termor  or  viUain.  *0r,  for  that  he  hokls  the 
tenement  jointly,  in  common  with  others,  without 
whom  he  cannot  answer. 

14.  If  any  erne  say  that  he  has  only  a  freehold  upon 
condition  until  he  has  levied  so  much  out  of  the  profits, 
or  until  such  or  such  an  event  happens,  yet  the  writ 
shall  not  thereby  abate  but  stand,  and  he  may  vouch 
to  warranty  if  he  thinks  proper.  And  as  to  the  tenant's 
exception,  that  she  ought  not  to  have  dower  because 
her  husband  lost  the  said  tenement  by  judgment,  she 
may  answer  by  way  of  replication,  that  it  was  by 
fraud  and  collusion,  and  by  consent  of  the  husband ; 
and  if  this  be  proved,  the  exception  will  not  avail. 

15.  Again,  the  tenant  may  say  that  her  husband 
aliened  the  land  which  she  demands  in  dower  before 
he  married  her ;  and  if  she  reply,  that  such  alienation 
Avas  for  term  of  life  or  otherwise  revertible  to  the 
feoffor,  and  that  this  land  was  appointed  to  her  for 
dower  in  the  original  establishment  thereof,  as  soon  as 
it  became  vacant ;  and  if  the  tenant  denies  this,  let  the 
truth  be  inquired  by  the  country. 

16.  Or  he  may  say  that  she  ought  not  to  have  dower, 
for  that  the  husband  of  whose  death  she  demands 
dower  had  another  wife,  whom  he  had  married  before 
he  married  her  Avho  now  complains,  and  that  he  en- 
dowed that  wife  of  these  same  tenements,  and  that  she 
is  yet  alive.     In  such  case  the  tenant  shall  sue  out  a 


560  BIUTTON.  [II,  *261  b. 

writ  to  cause  the  woman,  it"  any  such  there  be,  *to  come 
into  court  to  acknowledge  whether  she  makes  any 
claim.  But  if  the  })laintiff  will  aver  the  negative,  to 
Avit,  that  her  husband  had  not  another  wife,  or  that  if 
he  had  another  wife,  there  is  non(5  now  living  ;  in  both 
cases  the  plea  shall  be'  removable  into  court  Christian  ; 
and  according  to  the  return  of  the  ordinary  judgment 
shall  be  given. 

17.  With  respect  to  dower  which  a  wife  recovers 
from  a  farmer  holding  for  a  term  of  years,  let  it  be 
awarded  by  the  Justice  ex  officio  that  the  termor  shall 
retain  the  other  two  parts  of  the  land  until  he  has  re- 
ceived the  value  of  the  third  part  which  he  has  lost. 
And  thus  he  will  have  a  kind  of  freehold  where  before 
he  had  not.  But  if  the  wife  recovers  all  the  land  which 
the  farmer  holds,  as  land  whereof  she  was  endowed  in 
certain,  in  such  case  the  termor  ought  to  recover  from 
his  lessor  by  judgment  in  the  plea  of  warranty  to  the 
value  of  the  land.  And  if  the  lessor  lias  no  land  where- 
with he  can  warrant  his  term,  it  shall  be  awarded  ex 
officio  by  the  Justices  that  he  shall  recover  of  his  lessor 
to  the  value  when  the  land  included  in  the  dower  shall 
fall  in,  or  any  other  out  of  which  he  can  make  satisfac- 
tion ;  and  let  this  award  be  enrolled,  so  that  when  the 
time  comes  he  may  have  remedy  by  writ  of  judgment 
upon  such  enrolment. 


II,  *262.]  OF  THE  JUDGMENT.  561 


^CHAPTER  XI. 

Of  the  Judgment  in  an  Action  of  Dower. 

1.  When  it  cannot  be  denied  that  the  widow  ought 
to  have  dower,  let  it  forthwith  be  awarded  that  she 
recover  seisin  of  her  dower,  and  her  damages  to  be  as- 
sessed bv  the  jury,  as  before  mentioned. 

2.  But  although  the  widow  recover  dower,  she  may 
lose  it  in  several  ways,  as  where  her  warrant  loses  the 
two  other  parts  b}'^  judgment  without  any  collusion, 
then  she  will  lose  her  dower.  So  she  may  be  deprived 
of  it  by  the  custom  of  the  country,  as  particularly  in 
Kent,  and  sometime  there  was  such  an  usage  in  London 
and  in  many  other  places,^  that  as  soon  as  the  widow 
is  married  to  another  husband,  or  becomes  with  child 
by  any  other  than  her  first  husband,  she  may  be  im- 
mediately ejected  from  her  dower. 

3.  So  if  a  widow  is  disseised  of  her  dower,  and  after 
a  long  interval  and  peaceable  seisin  of  the  disseisor 
she  takes  the  seisin  bv  her  own  force,  refusing  to  pro- 
ceed by  judgment, — if  the  disseisor  can  recover  seisin 
by  assise  of  novel  disseisin,  the  widow  shall  never  re- 

^  The   form   of  expression,    which  seems  to  imply  tliat  the 
custom  was  no  longer  enforced  in  London,  is  not  found  in  the 
parallel  places  of  Bracton  and  Fleta. 
36 


562  BKITTOK  [II,  *262  i. 

cover  her  dower  except  by  the  aid  of  the  heir,  or  by 
writ  of  right  ol'  dower  wherein  she  shall  count  of  her 
own  seisin. 


CHAPTER  XII. 

Of  the  Plea  of  Rigid  of  Dower. 

1.  There  are  three  cases  in  which  a  widow  has  no 
recovery  for  her  dower,  save  by  writ  of  right  of  dower 
patent  pleadable  in  the  court  of  the  warrant.  *The 
first  is  where  the  widow  has  lost  her  seisin  by  assise  of 
novel  disseisin,  as  before  is  mentioned.  The  second, 
where  the  widow  demands  part  of  the  Jand  or  tenement 
in  dower,  as  of  her  reasonable  share,  and  is  already 
seised  of  the  rest.  The  third  case  is  Avhere  she  is  de- 
forced of  anything  which  is  appurtenant  to  her  dower. 

2.  These  pleas  shall  be  commenced  and  tried  in  the 
same  manner  as  the  great  writ  of  right  patent,  but  not 
so  as  to  admit  of  deraignment  ^  or  of  essoin  de  malo 
lectin  and  are  removable  into  the  County,  and  from 
thence  before  our  Justices,  in  all  the  ways  that  shall 
be  hereafter  mentioned  in  the  plea  of  right  by  the 
great  writ.  Demand  of  view  and  voucher  of  warrant 
also  lie. 

3.  If  the  tenant  desires  to  defend  himself,  or  is  war- 
ranted by  another  who  defends  him,  the  answer  may 

1  Tliis  word  '  deraign  '  appears  to  be  used  here  of  the  mode 
of  trial  used  in  the  ordinary  or  '  great  '  writ  of  right,  namely, 
battle  or  great  assise.  Tlie  proof  in  writ  of  right  of  dower  was 
by  '  the  country.'    See  Bracton,  f.  313  h.  ;  Fleta,  p.  359  (§  1.  2). 


II,  *293.]  OF  ADMEASUREMENTS.  563 

be,  that  the  plaintiff  wrongfully  demands  dower,  for  as 
much  as  she  of  her  own  free  will  delivered  up  or  sur- 
rendered the  tenement  to  him,  and  released  andq  uit- 
cluimed  her  right ;  or  that  she  heretofore  withdrew  her-" 
self  from  a  like,  writ  before  such  a  Justice  ;  or  that  the 
tenement  demanded  does  not  belong  to  her  dower;  or 
that  although  she  was  sometime  seised  thereof,  she 
was  not  so  seised  as  of  her  dower ;  or  that  she  was  never 
endowed  thereof,  but  of  other  land  specially  named  ; 
or  that  she  was  endowed  of  less  than  the  third  part, 
and  was  contented  therewith ;  or  that  she  has  more 
than  belongs  to  her  to  have  for  her  dower ;  and  in  the 
last  case  if  she  will  not  consent  to  admeasurement,  and 
the  tenant  is  ready  to  verify  this  as  his  *exception,  the 
widow  shall  take  nothing  by  her  writ,  but  remain  in 
mercy  ;  and  let  the  tenant  proceed  for  admeasurement 
of  the  dower  whereof  she  was  endowed,  whether  in  cer- 
tain or  of  the  third  part.   - 

CHAPTER  XIII. 

Of  Admeasurement  of  Dower. 

1.  Admeasurement  is  nothing  else  but  the  reducing 
to  measure  what  before  was  out  of  measure,  and  ex- 
tends as  well  to  a  thing  which  does  not  belong  to  dower 
as  to  the  excess  and  superfluity  of  it.  But  whether  the 
widow  holds  in  dower  too  much,  or  a  thing  which  she 
ought  not  to  hold,  yet  she  is  not  to  be  ousted  or  ejected 
without  judgment.  Therefore  it  is  proper  to  proceed 
for  remedy  by  writ  of  admeasurement  of  dower. 


564  53RITTOK  [II,  *263  J. 

2.  When  the  sheriff  has  taken  pledges  for  the  prosecu- 
tion of  the  plaint,  it  is  his  duty  to  summon  the  widow  to 
appear  on  a  certain  day.  He  ought  likewise  to  summon 
the  coroner  and  the  knights  and  other  freemen  of  the 
neighborhood.  At  which  day,  if  the  plea  is  not  removed 
by  Pone,  it  is  the  duty  of  the  plaintiff  to  set  forth  his 
plaint  according  to  the  tenor  of  the  w^rit,  if  the  widow 
is  present.  And  if  she  is  not  there,  or  if  she  is  there 
and  cannot  say  anything  whereof  the  admeasurement 
ought  not  to  be  had,  let  the  admeasurement  be  straight- 
way made  upon  the  oaths  or  freeholders  then  present 
by  good  and  lawful  extent.  *Then  let  it  be  inquired,  in 
what  manner  her  dower  was  established  on  her,  whether 
in  certain  or  of  the  third  part,  and  according  thereto  let 
the  admeasurement  be  finished,  yet  so  that  any  improve- 
ment which  has  been  made  by  the  widow  be  not 
included  in  the  extent  but  fall  entirely  to  her. 

3.  If  the  widow  chooses,  she  may  say  in  answer 
many  reasons  why  the  admeasurement  ought  not  to  be 
taken ;  as,  that  the  heir  was  of  full  age  when  he  en- 
dowed her  ;  or,  that  she  has  held  dower  before  the  time 
named  in  the  assise  of  novel  disseisin  ;  or,  although  the 
heir  endowed  her  by  his  guardian,  or,  although  she 
was  endowed  by  our  escheator  or  other  when  the  heir 
was  under  age,  yet  that  since  he  has  attained  his  age 
he  has  agreed  to  and  confirmed  the  said  assignment; 
and  by  several  other  exceptions  she  may  hinder  the 
admeasurement. 

4.  If  the  plea  is  in  our  court,  and  the  defendant  makes 
default,  distresses  and  attachments  shall  run  as  per- 


II,  *264.]  WKITS  OF  ENTRY  565 

soTjal  actions  and  such  further  process  as  is  mentioned 
in  our  statute. 

5.  When  the  widow  has  by  just  measurement  that 
which  belongs  to  her  for  her  dower,  she  has  no  j)o\ver 
to  make  any  sale  of  the  dower  or  anything  that  be- 
longs to  it  beyond  her  life,  or  to  make  exile  of  villains, 
or  enfranchise  them,  or  commit  an}'  waste  ;  and  if  she 
does  so,  the  remedy  provided  by  our  statutes  shall  be 
pursued.! 


*CIIAPTER  XIV. 
Of  the  Actions  founded  on  Writs  of  Entry. 

1.  There  are  some  possessory  causes  which  savour 
much  of  the  right  of  property,  as  the  action  of  entry, 
the  right  of  customs  and  services,  where  both  the  words 
solet  and  debet  are  contained,  of  ^wo^Wd,  of  reasonable 
bounds,  of  reasonable  estovers  of  each  kind,  and  others 
like. 

2.  In  the  plea  of  entry  there  are  three  degrees.  The 
first  is,  where  one  demands  land  or  tenement  of  his 
own  seisin  after  a  term  of  lease  expired.  The  second 
is,  where  one  demands  land  or  tenement  after  the  ex- 
piration of  a  term  of  lease  created  by  another.     The 

^  '  Note,  that  waste,  sale,  and  exile,  are  three  tilings  that 
touch  disherison  ;  wlierefore  termor  doing  them  justly  loses  his 
tenancy  as  one  who  disinherits  another  :  for  by  his  act  he  proves 
himself  to  claim  an  estate  wliich  he  ought  not  to  have,  and  by 
consequence  shall  lose  all,  as  it  is  said  in  reprobation  (en  re- 
prover): Often  michel  yerne  bringes  littel  hom.'  (Note  in  MS. 
JV^.) 


566  BRITTON.  [II,  *264  b. 

third  is,  when  a  tenement  is  demanded  of  a  tenant  who 
had  entry  by  one  to  whom  some  ancestor  of  the  plain- 
tiif  leased  it  for  a  term  which  is  expired  ;  and  accord- 
ing to  these  degrees  the  writs  of  remedy  are  varied. 
There  is  still  a  fourth  form,  which  is  out  of  the  degrees, 
and  is  derived  from  a  more  remote  seisin  to  which  the 
other  three  degrees  do  not  extend.  The  second  degree 
contains  the  wordj?er  y  the  third  the  words  jp^/*  and  eiii  ; 
and  the  form  beyond  the  degrees  the  word  post^  that  is 
to  say,  after  the  lease,  or  after  the  disseisin  which 
such  an  one  made  to  such  an  one.  And  if  any  writ  of 
entry  is  not  framed  agreeably  to  the  case,  so  that  one 
form  is  obtained  instead  of  another,  the  Avrit  is  defec- 
tive, and  therefore  abatable. 

3.  The  form  in  the  first  degree  is  as  follows.  '  Com- 
mand W.  that  he  render  to  P.  the  manor  of  C.  with 
the  appurtenances,  which  hedemised  to  him  for  a  term 
Avhich  is  past.'  The  second  form  is  thus.  '  Command 
J.  that  he  render  to  P.  the  manor  of  C.  in  whicli  he 
hath  not  entry  save  by  E.  mother  (or  uncle,  cousin, 
grandfather,  or  great-grandfather)  *of  the  same  P.  who 
leased  the  aforesaid  manor  to  him  for  a  term  wliich  is 
past.'  The  third  form  is  as  follows.  'Command  J. 
that  he  render  to  P.  the  manor  of  O.  in  wiiich  Jje  hath 
not  entry  save  by  T.  to  whom  such  an  one  father,  (or 
mother,  cousin,  grandfather,  or  great-grandfather,  &c.), 
whose  heir  tlie  same  P.  is,  leased  the  said  manor  for  a 
term  which  is  past,'  And  the  form  beyond  the  degrees 
is  thus : — '  in  whicli  he  hath  not  entry  save  after  the 
lease  which  such  an  one,  father  (or  mother,  &c.)  whose 


II,  *265.]  WRITS  OF  ENTRY.  567 

heir  he  is,  made,  &c.'  And  from  these  four  are  drawn 
the  forms  of  all  kinds  of  writs  of  entry,  which  are  of 
infinite  number. 

4.  This  writ,  so  long  as  the  degrees  and  term  will 
permit,  lies  as  well  against  strangers  who  have  entered 
by  disseisors,  whether  one  or  more,  as  against  the  heirs 
of  the  disseisors  and  against  those  who  enter  by  such 
heirs  as  far  as  the  person  in  the  third  degree,  as  for 
■example  in  this  form.  '  Command  P.  that  he  render  to 
J.  the  manor,  &c.,  in  which  he  hath  not  entry  save  by 
T.  son  and  heir  of  S.  who  leased  the  same  manor  to  him 
iifter  the  same  S.  had  wrongfully  disseised  the  aforesaid 
J.  thereof  ; '  or,  if  the  disseisee  is  dead,  and  his  heir 
brings  the  action  against  the  heir  of  the  disseisor,  then 
thus  : — "  in  which  he  hath  not  entry  save  by  T.  son  and 
heir  of  S.  who  leased  the  same  manor  to  him  after  the 
"^same  S,  had  wrongfully  disseised  E.  father  (or  mother 
or  other  ancestor)  of  the  aforesaid  J.  and  wi)ose  heir 
he  is.' 

5.  But  if  one  commits  disseisin  of  a  tenement  which 
was  the  right  of  his  own  wife,  and  the  disseisor  dies, 
xind  the  wife  abides  therein,  and  continues  the  like  seisin 
as  her  husband  had  in  his  lifetime,  and  dies  so  seised, 
and  her  heir  after  her  death  enters  and  continues  the 
same  seisin,  and  the  disseisee  brings  a  writ  of  entry 
against  the  same  heir,  although  the  heir  should  make 
iinswer  that  he  had  not  entry  by  any  disseisin  which 
his  father  or  ancestor  made  thereof,  but  by  descent 
from  liis  mother,  who  died  seised  thereof  in  her  demesne 
as  of  fee  and  of  right,  yet  he  is  bound  to  answer  to  the 


568  BRITTON.  [II,  *265  L 

entry  of  the  ancestor  from  whom  his  mothers  seisin 
was  merely  derivative.  For  although  the  mother  die 
in  her  demesne  as  of  fee,  yet  she  had  a  tortious  entry 
by  the  disseisin  of  her  husband  ;  and  because  by  means^ 
of  such  defective  entry,  although  derivative,  the  land 
is  come  to  the  heir,  the  heir  is  bound  in  such  case  to 
answer  to  the  entry, 

6.  If  the  tenement  pass  the  third  degree  of  blood  by 
succession,  the  remedy  by  writ  of  entry  will  not  avail.^ 
But  in  such  cases  a  writ  is  used  to  be  framed  as  follows. 
'  Command  P.  that  he  render  to  J.  the  manor,  whereof 
T.  disseised  the  same  J.  or  others  of  his  ancestors,  whose 
heir  he  is,' — without  making  mention  of  the  entry. 
Again  if  any  one  disseised  the  disseisor,  and  aftei'wards 
*aliened  that  tenement,  he  cannot  in  such  case  say, 
'  which  the  first  disseisor  leased  to  him ; '  and  therefore 
let  it  be  said  thus :  '  in  which  he  hath  not  entrv   save 


1  '  Nota,  tViat  if  the  tenements  be  come  to  several  hands,  as  tO' 
five,  or  ten,  or  twelve,  the  writ  of  entry  still  lies,  because  noth- 
ing has  accrued  to  the  last  purchaser  more  than  to  the  first.  But 
if  they  be  come  to  four  heirs  in  lineal  succession,  or  to  three, 
secundum  quosdam,  so  that  each  has  been  seised,  and  the  last  is 
in  possession,  he  is  as  it  were  inherited  (come  enherite)  in  the 
right,  although  the  mere  right  be  in  another.  And  also  if  a 
grandfather  has  leased  a  tenement  for  a  term,  and  the  gi'and- 
father,  his  son,  his  son's  son,  and  his  son's  son's  son,  die  before 
the  term  be  passed,  so  that  the  demandant  is  in  the  fourth  de- 
gree, he  cannot  recover  by  writ  of  entry  ;  because  it  is  a  writ  of 
possession  mixed  with  the  right,  and  he  ought  not  to  be  in  better 
condition  in  this  case  than  if  his  ancestor,  i.  e.  the  great-grand- 
fat  lier.  had  died  seised.'     (Note  in  MS.  N.) 


J  I,  *265  h.]  WRITS  OF  ENTRY.  56^ 

by  such  an  one,  who  disseised  such  an  one,  after  the 
last  named  had  disseised  the  plaintiff,'  or  his  heir  *  near 
or  remote ;  or  the  entry  need  not  be  mentioned. 

7.  This  action  lies  only  against  those  who  hold  tene- 
ments beyond  the  term  for  which  they  are  leased,  and 
against  their  heirs  and  assigns,  and  against  those  Avho 
had  entry  into  any  tenement  by  intrusion  or  by  disseisin, 
and  also  against  the  heirs  and  assigns  of  the  disseisors 
and  intruders,  who  had  entry  therein  by  them  by 
succession,  lease,  or  feoffment ;  and  against  those  who 
had  entry  by  feoffment  of  bailiffs,  guardians,  villains, 
or  others  who  had  nothing  save  for  term  for  life  or 
years,  or  a  simple  tenancy,  or  of  infants  under  age,  or 
by  feoffments  made  by  compulsion  in  prison,  or  by  mad 
persons,  or  by  the  parson  of  a  church,  or  a  monk  or 
canon  removable,^  without  the  assent  of  the  bishop  and 
the  patron ;  or  by  felons  or  bastards,  or  b}'  others  who 
cannot  alien  anything  of  the  right.  •  So  likewise 
against  those  who  have  deceivably  purchased  tenements^ 
upon  a  promise  to  do  such  or  such  a  thing,  and  when 
they  are  enfeoffed  thereof,  refuse  to  perform  it. 

8,  The  word  'term,'  extends  as  well  to  a  term  of  life 
as  to  a  term  of  years.     But  he  who  leases  only  for  a 

1  This  word  should  apparently  be  '  ancestor.'  The  error,  if  it 
be  so,  is  probably  derived  froniFleta,  where  tlie  wordis/iopredeni. 

2  See  vol.  i.  p.  159,  and  the  note  there ;  and  compare  Year 
Book,  31  Edw.  I.  p.  454.  The  words  in  Bracton  are,  '  a  canon 
without  the  assent  of  the  bishop  and  chapter,  an  abbot  without 
the  consent  of  his  chapter,  or  a  cellarer  clerk  or  other  procurator 
without  the  consent  of  his  abbot  or  prior.     (Bracton,  f.  318. ) 


-570  BRITTOK  [11,  ^26Q. 

*terin  of  years,  although  he  make  the  lease  for  a  term 
of  a  hundred  years,  leases  the  profits  only,  and  retains 
to  himself  the  fee  and  the  right  and  the  freehold,  if  he 
had  them  before  the  lease  ;  and  all  that  he  retains  he 
will  leave  at  his  death  to  his  heir ;  or  he  may,  without 
doing  any  wrong  to  the  farmer,  give  and  alien  it  to  a 
stranger;  or  he  may  release  and  quitclaim  every  sortof 
right  to  the  farmer  himself,  and  enfeoff  him,  without 
first  ousting  the  farmer  of  his  seisin,  such  as  it  is.  This 
he  cannot  do  to  a  stranger,  unless  the  farmer  of  his 
own  consent  will  attorn  to  the  purchaser ;  for  the  seisin 
of  the  alienor  is  all  along  continued  by  the  farmer  who 
enjoys  his  seisin  in  the  name  of  his  lessor. 


CHAPTER  XV. 

Of  the  Proceedings  in  an  Action  of  Entry. 

1.  The  tenant  being  summoned  may  cause  himself  to 
be  essoined  de  malo  veniendi  and  the  plaintiff  the  like. 
The  tenant  mav  also  demand  view  of  the  thing- in 
demand  ;  and  may  vouch  to  warrant,  whether  mention 
be  made  of  entry  in  the  writ  or  not;  so  nevertheless 
that  if  such  mention  be  made,  the  voucher  shall  be 
from  person  to  person,  and  from  warrant  to  warrant,  of 
the  persons  named  in  the  writ  in  order  up  to  the  first 
-disseisor,  or  other  entror,  or  his  heir.  For  other 
warrants  than  those  named  in  the  writ  ought  not  to  be 
Touched.^     And  if  no  mention  is  made  of  the   entry  in 

1  That  is,  if  the  tenant  does  not  deny  the  entry  to  have  been 


11,  *26G  b.]      OF  THE  PROCEEDINGS.  571 

^tbe  writ  of  degrees,  then  others  wlio  are  not  named  in 
the  writ  may  be  vouched,  if  the  vouchors  have  sufficient 
ground  for  doing  so. 

2.  If  the  plaintiff  founds  his  case  upon  the  right, 
<;ounting  in  the  right  by  descent  or  by  resort,  as  in  the 
plea  of  right,  and  coming  down  at  the  end  of  his  count 
to  the  entry,  in  such  case  the  defendant  or  tenant 
has  two  modes  of  defence.  For  he  may  undertake  to 
defend  the  entry  upon  the  possession,  in  which  case 
he  tenders  averment  by  a  jury,  or  pleads  an  excep- 
tion. If,  on  the  other  hand,  he  chooses  to  defend  the 
descent  of  the  right,  he  has  three  ways  of  defending 
himself,  either  by  the  body  of  one  his  freeman,  or  by 
putting  himself  upon  the  great  assise,  or  by  having  the 
plea  determined  by  a  jury.  If  he  be  defended  by  battle, 
or  the  great  assise,  where  the  plaintiff  has  tendered 
deraignment,  or  agreed  to  the  great  assise,  then  the 
tenant  may  on  the  second  day  of  plea  have  himself 
essoined  de  malo  veaiendi  as  after  appearance,  and  at 
the  next  day  be  essoined  demalo  lecti,  and  so  he  may  lie 
for  a  year  in  lanquore.  And  in  this  case  the  proceedings 
shall  be  in  all  points  as  will  be  stated  concerning  the  plea 
of  right ;  because  at  the  tenant's  election  and  by  his 
defence  the  right  of  possession  is  disregarded,  so  that 
the  action  of  entry  is  entirely  changed  to  the  nature  of 
a  plea  of  right.  But  this  never  happens  upon  the 
election  of  the  plaintiff ;  therefore  in  every  plea  which 
savours  of  both  rights  it  is  entirely  in  the  defendant's 

-as  statnd  by  the  plaintiff.  Compare  below,  c.  16.  s.  2  ;  Bracton, 
i.  321 ;  Year  Book,  31  Edw.  I.  p.  336. 


572  BRITTON.  [II,  *26T. 

*choice  either  to  defend  himself  in  the  right  of  property 
by  battle  or  by  great  assise,  or  to  defend  himself  in  the 
right  of  possession.  And  in  some  cases  also  it  is  in  his 
power  to  cause  the  plea  of  right  to  be  changed  into  one 
of  possession,  as  shall  afterwards  be  noticed ;  for  if 
mention  be  made  of  the  entry  in  counting  in  the  plea 
of  right,  and  the  defendant  chooses  to  waive  the  defence 
in  the  right  and  to  defend  the  entry,  and  so  the  pos- 
session, the  nature  of  the  writ  of  right  is  so  changed, 
that  neither  battle,  nor  great  assise,  nor  essoin  de  malo 
lecti  w^ill  lie,  but  the  plea  shall  be  determined  by  jury. 

3.  Nevertheless  there  are  some  writs  of  entrv,  and  of 
customs  and  services,  w^hich  will  nowise  admit  of  being 
changed  from  a  possessory  nature  to  that  of  a  plea  of 
right ;  as,  where  a  person  has  leased  for  a  terra  of  years 
his  tenement  which  he  held  for  term  of  his  life  or  for 
a  greater  term  of  years,  and  at  the  end  of  the  lease 
demands  back  again  his  own  seisin  ;  or  if  he  demands 
by  writ  of  entry  a  tenement  which  he  demised  for  a 
term,  and  in  which  he  had  a  fee  without  ever  having 
taken  esplees ;  so,  the  writ  of  customs  and  services  where 
the  dehet  is  omitted. 

4.  It  is  to  be  well  observed,  that  in  all  pleas  what- 
soever, where  the  w^rit  makes  mention  of  both  rights, 
and  the  plaintiff  in  his  declaration  counts  by  means  of 
the  right  as  well  as  concerning  the  possession,  if  the 
defence  proceeds  upon  the  right,  however  the  plea  is 
ended,  whether  by  a  jury  or  in  any  other  niMnner, 
there  is  no  resort  to  the  writ  of  right,  because  all  the 
right  is  determined.     But  if  the  defence  of  the  right 


ir,  *268.]  ACTION  OF  ENTRY.  573 

is  waived  and  the  possession  only  is  defended,  there 
will  be  a  further  expedient,  and  a  remedy  by  writ  of 
right,  whether  the  jury  find  for  the  plaintiff  or  for  the 
<iefendant. 


CHAPTER  XVI. 

Of  Exceptions  in  the  Action  of  Entry. 

1.  In  this  plea  the  tenant  may  aid  himself  by  general 
dilatory'  and  peremptory  exceptions.  Thus  he  ma}-^ 
admit  the  entry  by  the  term,  but  say  that  within  the 
said  terra  the  land  was  released  and  quitclaimed,  or 
given  to  him  in  fee.  But  in  this  case,  it  must  be  dis- 
tinguished whether  the  exception  can  be  proved  by 
charter  or  writing,  or  not.  For  if  by  writing,  which  is 
proved  or  not  denied,  the  judgment  is  clear.  And  if 
not,  and  both  parties  have  gone  to  a  jury  upon  the 
^ntry  by  the  count  and  by  defence  also  through  the 
right,  then  instead  of  the  great  assise  let  the  recogni- 
sance of  the  jury  be  taken  in  these  words  : — to  recognise 
upon  their  oaths  whether  the  aforesaid  P.  had  other 
right  or  other  entry  in  the  aforesaid  land  save  *by  J., 
who  demised  the  land  to  him  for  a  term  which  is 
passed,  or  whether  the  said  P.  had  entry  in  that  land 
by  the  same  J.  who  sold  or  gave  or  quitclaimed  the 
same  to  him  in  fee,  as  the  said  P.  says,  and  whereof 
he  acknowledges  that  the  abovesaid  J.  the  same  land 
first  demised  to  him  for  a  term,  but  further  says  that 
during  his  term  he  released  the  same  to  him  in  fee. 

2.  Again,  the  tenant  may  say  that  he  had  not  entry 


574  BRITTON.  [II,  *268. 

by  such  an  one,  but  by  another  person  named  ;  and  in 
such  case  the  tenant  is  not  obliged  to  vouch  the  latter 
to  warranty,  but  it  will  be  sufficient  for  him  to  abate 
the  writ.  And  if  he  waive  the  exception,  it  may  per-, 
haps  prejudice  him. 

Here  ends  the  Law  of  Possession^  and  begins  the 
Law  of  Property. 


BOOK  VI. 

OF  PKOPKIETAEY   ACTIONS. 

INTRODUCTION. 
Of  the  Plea  of  Right. 

Having  finished  the  form  and  manner  of  pleading 
the  possessory  right,  we  must  now  treat  of  the  manner 
of  pleading  upon  the  right  of  property,  which  in  the 
order  of  pleas  is  the  last  of  all  remedies  ;  so  that  none 
can  descend  from  a  writ  of  right  to  a  writ  of  a  lower 
nature,  although  the  reverse  may  be  done. 


^CHAPTER  I. 

Of  Proximity  of  Heirs. 

1.  This  action  alone  by  the  manner  of  counting  tries 
the  proximity  of  heirs  with  respect  to  the  succession  to 
the  inheritance.  For  inheritance  is  the  succession  of 
the  heir  to  every  right  of  which  the  ancestor  died 
seised.  And  from  inheritance  is  derived  heir,  who  is 
the  successor  to  every  right  which  the  ancestor  had  at 
the  time  of  his  death.  And  this  right  sometimes  de- 
scends like  a  weighty  body,  and  sometimes  ascends. 
And  although  the  possession  does  not  always  follow 

the  mere  right,  yet  in  the  end  it  will  return  to  it,  if  the 

575 


576  BRITTON.  [II,  *269. 

right  heir  proceeds  in  a  proper  manner.  For  to  the 
risrht  heir  descends  the  mere  rio^ht  which  his  ancestor 
had  when  he  died,  whether  the  heir  at  the  time  of  his 
ancestor's  death  be  in  the  country  or  be^'^ond  sea,  and 
whether  he  is  in  his  mother's  womb  or  already  born. 

2.  All  children  however  are  not  admissible  to  the 
inheritance,  for  some  are  natural  and  legitimate  ;  ^  and 
t)f  those  who  are  both  legitimate  and  natural,  some  are 
sons  and  heirs,  others  sons  and  not  heirs ;  and  some  are 
heirs  of  their  fathers,  some  of  their  mothers,  and  some 
on  both  sides,  and  others  are  not  heirs  to  either,  al- 
though they  are  both  legitimate  and  natural ;  and  some 
begin  by  being  heirs  and  afterwards  perhaps  cease  to 
be  so,  and  others  not.  And  of  natural  and  legitimate 
heirs,  some  are  near  and  some  again  nearer,  *and  some 
remote  and  others  more  remote.  For  all  brothers  on 
the  father's  side  are  near  heirs  of  their  father  by  reason 
of  the  share  they  have  in  the  possession.  This  is  un- 
deniable, because  if  the  younger  brother  keeps  his 
elder  brother  out  of  his  inheritance,  and  has  taken  the 
profits  and   peaceable  seisin  thereof,  the  eldest  shall 

1  A  clause  appears  to  have  been  left  out  by  the  copyist  here, 
owing  to  the  repetition  of  the  same  word.  The  text  should 
probably  stand  thus  :  Car  acuns  sount  naturels  et  mulerez,  et 
acuns  sount  naturels  et  nient  mulerez,  et  acuns  ne  sount  ne 
naturels  ne  mulerez.  See  the  parallel  places  in  Bracton  and 
Fleta,  referred  to  above.  According  to  Bracton.  a  natural  child 
is  one  born  of  parents  between  whom  at  the  time  of  intercourse 
a  legal  marriage  is  possible,  as  between  a  bachelor  and  a  maid 
not  of  kin  to  each  other.  And  children  born  ex  prohibito  coitu 
are  neither  legitimate  nor  natural.     (Bracton,  f.  64.) 


II,  *269  h.-]  OF  SUCCESSION.  577 

have  no  recovery  in  the  right  of  possession,  as  before 
is  mentioned,  but  he  is  driven  to  demand  his  inherit- 
ance by  means  of  the  writ  of  right,  whicii  writ  alone 
tries  who  is  nearest  heir  in  blood.  And  accordino:  as 
it  shall  be  found  by  counting  of  the  proximity  among 
brothers  judgment  shall  be  given.  But  in  all  cases  that 
person  is  next  heir  at  law  to  whom  the  mere  right 
soonest  descends. 


CHAPTER  II. 

Of  Succession,  and  the  Law  of  Inheritance. 

1.  All  those  who  first  descend  from  the  common 
stock  from  degree  to  degree  in  the  direct  line  for  ever 
are  lawful  and  true  heirs  ;  and  when  default  is  found 
in  the  direct  line,  then  those  who  are  found  to  be  the 
nearest  in  the  collateral  degrees  for  ever  are  the  right 
heirs ;  and  lastly,  when  default  is  found  in  the  trans- 
verse line  descending,  those  who  appear  to  be  nearest 
in  any  ''^transverse  line  ascending  shall  be  admissible. 
But  although  the  heirs  so  ascending  forever  are  lawful 
and  right  heirs,  yet  they  are  not  all  admissible  at  the 
same  time  to  the  succession,  because  the  eldest,  being 
nearest,  excludes  the  youngest  who  is  near,  and  he  who 
is  near  excludes  the  remote,  and  the  remote  one  more 
remote.  And  when  all  these  fail,  either  by  their  blood 
becoming  extinct,  or  by  their  right  being  forfeited  by 
judgment  of  felony,  the  tenement  must  of  necessity 
return  to  the  lord  of  the  fee,  as  to  the  source  from 
37 


678  BRITTON.  [II,  *270, 

Avhich  it  first  issued,  for  want  of  any  other  direction  in 
which  it  can  go ;  and  in  such  case  the  homage  received 
for  the  tenement  is  extinguished.^ 

2.  There  are  many  things  which  constitute  proximity^ 
and  confer  an  inheritance  and  right  of  succession,  to 
wit,  sex,  age,  line,  a  partible  inheritance,  plurality  of 
female  heirs,  form  of  gift,  and  blood.  Sex,  because  the 
male  is  to  be  received  and  the  female  rejected,  so  long 
as  there  is  a  male  heir  apparent  of  the  father  by  the 
same  mother ;  but  the  daughter  begotten  on  the  first 
Avife  is  to  be  preferred  in  the  succession  to  the  marriage 
granted  with  her  mother  to  the  male  begotten  by  the 
same  father  on  the  second  wife. 

3.  Age  is  material ;  because  he  who  is  the  first  born 
is  admissible  before  the  younger  son  of  the  same  father 
and  mother,  and  the  younger  brother  will  remain 
nearest  heir  to  the  elder,  or  at  least  a  near  heir,  *accord- 
incr  as  the  elder  shall  have  issue  or  not.  And  if  the 
elder  brother  dies  without  heir  of  his  own  in  the  life- 
time of  his  father,  the  younger  brother  will  take  his 
place,  and  begin  to  be  next  heir  to  their  common  father, 
and  the  other  younger  ones  will  be  near ;  and  so  of 
those  more  remote,  without  end. 

4.  If  the  elder  brother  dies  in  his  father's  lifetime, 
having  begotten  an  heir,  this  issue  remains  under  the 
authority  of  the  grandfather,  and  shall  be  next  heir  to 
the  grandfather  by  reason  of  the  mere  right  which  de- 
scended to  him  by  the  death  of  his  father,  the  grand- 

1  See  above,  pp.  360  and  361,  and  the  note  there. 


ir,  *2T0  h.]  OF  SUCCESSION".  579 

father's  son,  although  the  son  did  not  live  to  attain  any 
estate  ;  and  the  uncle  or  aunt  shall  be  only  near  heir, 
althouc^h  he  is  one  degree  nearer  than  the  grandson, 
who  is  next  heir.  Therefore  if  the  uncle,  or  aunt,  being 
out  of  seisin,  demand  the  seisin  of  his  father  by  assise 
of  Mortdancester,  or  by  writ  of  right  against  the  grand- 
son the  exception  of  proximity  shall  bar  him  ;  and  in 
like  manner  if  he  demand  against  a  stranger.  And  if 
the  uncle  or  aunt  is  in  seisin,  and  keeps  out  the  grand- 
son, the  grandson,  being  next  heir,  shall  recover  by 
means  of  the  writ  of  right  by  pleading  his  descent. 
And  what  is  here  said  of  the  younger  brother,  uncle  to 
the  near  heir,  may  be  taken  as  an  example  of  the 
position  of  near  heirs  in  all  like  cases. 

5.  Line  is  material ;  because  the  daughter  found  in 
the  direct  line  descending  is  to  be  preferred  before  the 
male  found  in  the  transverse  line. 

6.  Of  a  partible  inheritance,  the  younger  son,  as 
before  has  been  mentioned,  shall  have  as  great  a  share 
as  the  elder ;  and  in  this  case  the  custom  of  the  place 
shall  be  observed. 

*7.  Plurality  of  female  heirs  affects  the  succession,  as 
in  case  of  sisters  parceners,  who,  whether  they  are  be- 
gotten of  one  or  of  several  mothers,  all  present  them- 
selves in  the  place  of  one  heir,  and  no  one  of  them  is 
to  be  preferred  before  another,  neither  can  one  be  heir 
to  the  others  ;  for  that  would  imply  a  nearer  proximity 
in  one  than  in  another,  which  there  is  not,  since  they 
are  all  equally  nearest.  And  if  one  of  them  dies,  the 
shares  of  the  rest  shall  be  thereby  increased,  but  not 


580  BRITTOK  [II,  *271. 

by  succession,  but  by  a  kind  of  right   called  that  of 
accruer.* 

8.  The  form  of  gift  is  also  material,  as  appears  in 
the  case  of  feoffments,  whereby  strangers  are  admis- 
sible to  the  succession  in  preference  to  the  next  heirs, 
who  are  excluded  by  the  feoffors.  For  the  wills  of 
donors  are  to  be  observed  as  far  as  the  law  can  permit ; 
and  although  such  strangers  are  not  right  heirs,  yet 
they  shall  be  in  the  place  of  heirs.  And  so  shall  all 
those  stand  in  the  place  of  heirs  to  whom  lands  or  tene- 
ments fall  by  any  manner  of  reversion  or  of  escheat, 
whether  it  be  by  default  of  blood  or  by  forfeiture, 

9.  Right  of  blood  sometimes  causes  the  female  to  ex- 
clude the  male.  For  if  A.  begets  by  one  wife  a  son 
and  a  daughter,  and  by  another  wife  a  son,  the  eldest 
son  is  next  heir  to  the  father  and  *the  mother,  and  if 
he  dies  without  issue  of  his  own,  the  sister  is  nearer 
heir  to  the  deceased  brother  than  the  younger  brother 
by  the  second  or  third  wife.  And  so  likewise  the  issue 
of  the  sister.  But  the  first  issue  shall  never  demand 
any  part  of  the  inheritance  of  their  step-mother  until 

^  It  appears  to  follow  from  the  doctrine  of  the  text,  that  if  an 
inheritance  descended  to  several  daughters  by  two  wives,  the 
share  of  one  coparcener  dying  without  issue  would  go  by  sur- 
vivorship or  accruer  to  all  the  others,  and  not  by  descent  to  her 
sisters  of  the  whole  blood.  A  similar  doctrine  is  to  be  found 
obscurely  expressed  in  Bracton,  f.  66  b.  (Compare  Bracton, 
f.  77  b  ;  and  see  above,  p.  73,  and  note  there  ;  Blackstone,  Com- 
mentaries, vol.  ii.  p.  231,  note.)  In  modern  times  no  jus  accre- 
scendi  has  been  admitted  between  parceners.  (Blackstone, 
Commentaries,  vol.  ii.  p.  188.) 


II,  *2n  h.-]  OF  SUCCESSION.  581 

after  the  decease  of  her  issue,  and  if  she  has  no  issue 
by  their  father,  they  can  never  demand  any  part  of  the 
inheritance  of  their  step-mother ;  nor,  although  she  has 
issue  by  their  father,  if  her  inheritance  did  not  descend 
to  their  brothers  or  sisters,  tlie  children  of  their  common 
father  by  their  step-mother.  But  if  the  inheritance 
falls  to  their  brothers  or  sister,  the  children  of  the  same 
father  by  a  different  mother,  and  the  issue  of  their 
step-mother  fails,  an  action  immediately  accrues  to 
the  first  children,  or  to  their  issue,  to  demand  the  seisin 
of  the  last  children,  or  of  their  issue.^ 

10.  Of  issue  begotten  upon  the  same  mother  by 
different  fathers,  the  son  by  the  first  father  and  his 
issue  are  nearer,  and  are  sooner  to  be  admitted  to  every 
inheritance  on  the  part  of  their  mother,  as  well  as  on 
the  part  of  their  father,  than  the  younger  sons;  and  if 
they  die  seised  and  without  issue,  the  sisters  l)y  the 
same  father  and  mother  are  to  be  preferred  to  the 
brothers  by  the  same  mother  and  different  fathers. 
■'^But  if  no  male  child  of  the  first  husband,  or  his  issue, 
survive  to  attain  the  inheritance  of  his  mother,  then 
the  males  by  the  second  husband  are  admissible  to  the 

1 1  do  not  find  any  autkority  in  Bracton  for  the  succession  of 
the  half-brother  to  an  inheritance  descended  from  his  step- 
mother, a  stranger  in  blood.  But  see  the  Year  Book,  33  Edw.  I. 
p.  444.  Bracton  allows  a  man  to  be  heir  to  his  half-brotlier  in 
respect  of  land  purchased  by  him,  in  default  of  brothers  or 
sisters  of  the  whole  blood.  And  in  respect  of  land  descended 
from  their  common  father,  he  appears  to  doubt  whether  the 
half-brother  would  not  be  preferred  to  the  sister  of  the  whole 
blood.     (Bracton,  f.  65,  65  b.  66  6.) 


582  BKITTON.  [II,  *  271  I. 

inheritance  of  the  mother  before  the  females  by  the 
first  husband  ;  but  if  any  male  of  the  first  husband  has 
issue,  male  or  female,  this  issue  is  to  be  admitted  to 
the  inheritance  of  the  mother  before  the  males  by  the 
second  husband. 

11.  Sometimes  also  the  younger  sister  excludes  the 
elder  brother,  as  where  John  begets  by  his  first  wife  a 
son,  and  by  his  second  wife  a  son  and  a  daughter,  and 
the  younger  son  purchases  lands  or  tenements,  and  dies 
without  heir  of  his  own  body,  the  sister  of  the 
purchaser  shall  carry  off  the  inheritance  and  exclude 
the  elder  brother,  although  the  brother  would  be 
sooner  admitted  to  the  inheritance  descending  from  the 
person  of  John  the  common  father.  And  if  John  has 
issue  two  sons  and  two  daughters  by  diverse  mothers, 
the  elder  brother  is  nearest  heir  to  John,  and  after 
him  the  younger,  if  the  father  survive  the  eldest  son  ; 
but  if  one  of  these  brothers  makes  a  purchase,  and 
dies  without  heirs  of  his  own  body,  the  sister  of  the 
same  venter  as  the  purchasor  shall  be  the  nearest  heir, 
and  shall  exclude  the  brother  and  sister  of  the  other, 
venter,  if  not  barred  by  homage.^ 

• 
^  It  is  probably  meant  that  an  elder  brother  of  the  half  blood 
will  be  excluded  in  favour  of  a  sister  of  the  whole  blood,  even 
where  the  relation  of  homage  between  the  two  half-brothers 
does  not  present  an  obstacle  to  the  descent  to  the  bi-other,  as 
would  be  the  case  where  the  tenement  of  the  deceased  was 
derived  by  gift  from  the  common  father.  Compare  Glanvill,  li. 
vii.  c.  1  ;  Bracton,  f.  65  6  ;  Fleta,  p.  371  (§  15,  16);  and  see  above, 
p.  34,  note. 


II,  *272.]  OF  SUCCESSION.  583 

12.  If  there  are  three  or  more  brothers  by  the  same 
father  and  mother,  and  the  youngest  of  them  all  makes 
a  purchase  and  dies  without  heir  of  his  own  body,  the 
eldest  brother  shall  be  his  next  heir,  and  shall  exclude 
the  father  and  mother,  although  they  are  nearer  in 
blood,  because  the  brother  is  found  to  be  the  nearest  in 
the  same  degree,  which  the  father  and  the  mother  are 
not  ;  and  he  shall  also  exclude  the  other  brothers  and 
sisters,  although  they  are  found  in  the  same  degree.  And 
€ven  if  the  intermediate  or  other  brother  be  in  seisin, 
yet  the  eldest  shall  obtain  it  by  a  writ  of  right.  And  if 
the  eldest  brother  dies  without  heir  of  his  own  body,  then 
it  shall  go  to  the  next  eldest  brother,  and  so  from 
brother  to  brother,  until  it  comes  to  the  sisters.  And 
if  neither  brother  nor  sister  nor  any  issue  of  them  ap- 
pear, then  it  shall  go  to  the  common  father  ;  ^  or  if  the 
father  be  dead,  and  no  other  be  found  in  any  degree 
nearer  on  his  side,  to  the  common  mother ;  and  so  of 
all  the  other  degrees  ascending.  In  what  manner  the 
degrees  branch  out  will  appear  by  the  following  degrees 
,tkf  kindred. 

1  See  note,  p.  325. 


684  BKITTOK  [II,  *272  h. 


CHAPTER  III. 
Of  Degrees  of  Kindred. 

1.  There  are  various  degrees  of  kindred,  as  will 
appear  in  the  following  figure.  It  must  be  observed, 
no  one,  whether  male  or  female,  found  in  any  degree 
in  the  collateral  line,  either  ascending  or  descending,  is 
admissible  to  succeed,  so  long  as  any  person  is  found 
alive  in  the  direct  line  descending  ;  but  when  no  one  is 
found  there,  then  we  are  driven  of  necessity  to  seek  the 
degrees  in  the  collateral  lines. 

2.  It  is  always  proper  to  begin  to  count  from  the 
common  stock  last  seised  of  both  rights,  and  so  descend- 
ing in  *the  direct  line  from  degree  to  degree,  without 
stepping  over  any,  to  the  plaintiff,  and  not  only  through 
all  the  occupied  degrees  in  the  direct  line,  but  some- 
times through  the  vacant  degrees  ;  as  in  case  where 
the  eldest  son,  having  issue,  dies  before  his  ancestor. 
Sometimes  in  counting  by  descent  the  vacant  degrees 
are  passed  over,  as,  where  the  eldest  sons  die  without 
heirs  of  their  bodies  in  the  lifetime  of  their  ancestors ; 
for  if  an  eldest  son  dies  Avithout  issue  in  the  lifetime  of 
his  ancestor,  it  is  never  necessary  to  count  through  him, 
because  he  did  not  survive  until  any  estate  descended 
to  him,  but  such  degree  is  quite  vacant ;  so  also  if  he  had 


II,  *273.]    OF  DEGKEES  OF  KINDRED.  585 

an  heir  who  died  without  issue ;  and  in  such  case  the  next 
brother  occupies  his  place  by  reason  of  the  mere  right, 
which  attaches  to  him  as  the  next  of  blood.  And  if 
there  is  not  any  brother,  then  the  right  of  succession  will 
attach  to  the  sister  or  sisters ;  and  if  there  is  no  sister, 
then  it  will  resort  to  the  next  occupied  degree  on  the  side 
of  that  ancestor  from  whom  the  inheritance  moves  in 
some  collateral  line.  And  as  soon  as  he  becomes  seised 
of  both  rights,  he  begins  to  make  a  direct  line  as  to 
issue  begotten  by  him,  and  to  be  a  common  stock  with 
regard  to  the  heirs  derived  from  him.  *Yet  if  any  one 
chooses  to  count  through  a  person,  or 'his  children, 
who  did  not  live  until  any  estate  descended  to  them  by 
the  death  of  the  common  ancestor,  it  does  no  harm ; 
but  in  such  case  he  ought  not  to  say  that  the  right  of 
succession  descended,  but  that  from  John  ought  the 
right  to  have  descended  to  Peter,  and  from  Peter  to 
Thomas  as  his  grandson  and  heir  ;  but  inasmuch  as  such 
son  or  grandson  did  not  live  until  such  right  descended 
to  him,  because  he  died  in  the  lifetime  of  the  common 
ancestor,  the  right  descended  to  the  second  brother  or 
to  the  other  next  heir.  And  sometimes  the  count  is 
divided  into  branches  by  reason  of  plurality  of  heirs, 
as  in  case  of  sisters  parceners,  where  it  is  proper  first 
to  count  through  all  the  degrees  of  the  issue  of  the 
first,  and  then  of  the  second,  and  so  of  the  rest. 
'  3.  For  the  assistance  of  learners,  a  figure  may  be 
made  to  show  more  plainly  the  degrees  and  the  lines 
direct  and  collateral,  whereby  a  person  may  be  better 
acquainted  with  the  law  of  successions.     Let  therefore 


^86  BRITTON.  [lI,*27Sh. 

a  perpendicular  line  be  drawn,  and  in  the  middle  of  it 
let  a  void  space  be  left  for  the  supposed  plaintiff,  and 
let  his  father  or  mother  be  placed  above  him  as  the  first 
ancestor,  and  that  will  make  the  first  degree.  Above  the 
father  ormotherlet  the  grandfather  or  grandmother  of 
the  plaintiff  be  put  as  in  the  second  degree,  and  above 
the  grandfather  the  great-grandfather  or  the  great- 
grandmother,  *as  in  the  third  degree ;  and  above  the 
great-grandfather  the  great-great-grandfather  and  so 
higher  and  higher  by  different  degrees  as  far  as  the 
time  limited  in  a  writ  of  right  will  allow.  And  directly 
under  the  plaintiff  let  son  or  daughter  be  placed,  which 
will  make  the  first  degree  descending ;  and  under  him 
grandson  or  granddaughter,  to  make  the  second  degree; 
and  lower  again  the  son  or  daughter  of  the  grandson 
or  granddaughter  to  make  the  third  degree,  and 
so  descending  from  degree  to  degree  ad  infinitum. 

4.  If  there  be  found  no  plaintiff  in  the  direct  line  to 
whom  the  right  of  succession  can  descend,  then  of 
necessity  it  must  descend  to  the  collateral  degrees,  that 
is,  to  the  nearest  to  the  father  or  the  mother,  as,  to  the 
uncle  or  aunt,  and  so  on,  descending  in  that  line  from 
degree  to  degree  so  far  as  they  continue,  and  then  for 
default  of  degrees  found  in  the  first  collateral  line,  it 
must  resort  to  the  grandfather  in  the  direct  line,  and 
afterwards  for  default  there,  resort  to  the  brother  or 
sister  of  the  grandfather  in  the  collateral  line,  and  so 
from  degree  to  degree  so  far  as  they  shall  be  found 
full ;  and  so  of  all  the  other  higher  degrees,  so  that  the 
right  of  succession  shall  fall  to  those  who  shall  be  found 


II,  *274.]       OF  DEGREES  OF  KINDRED.        587 

in  the  direct  line,  if  none  can  be  found  anywliere  below 
him  to  whom  the  right  may  descend.^  *And  for 
default  of  him  who  would  have  made  a  degree  in  the 
direct  line  the  right  shall  descend  to  one  who  shall  be 
found  in  the  collateral  line,  and  for  default  of  a  degree 
in  the  collateral  line  the  right  shall  resort  again  to  the 
direct  line  at  a  higher  degree,  and  if  it  find  that  degree 
full,  it  shall  attach  there ;  if  not,  it  shall  go  on  descend- 
ing in  the  collateral  line,  and  so  of  all  the  other 
-degrees. 

5.  And  if  no  degree  be  found  where  the  right  may 
rest, — or  even  if  any  be  found, — the  lord  of  the  fee  may 
seize  his  fee  until  he  in  whose  person  the  mere  right  of 
succession  rests  shall  come  and  demand  it,  and  in  the 
meantime  the  lord  shall  stand  in  the  place  of  the  heir. 

6,  How  the  degrees  are  placed  in  consanguinity, 
appears  by  the  above  figure,  whereof   the   half  might 

^  It  will  be  observed,  tliat  the  writer  admits  succession  by 
lineal  ascendants,  contrary  to  the  generally  received  opinion, 
and  without  authority  from  the  writers  whom  he  generally  fol- 
lows. See  before,  p.  164,  note,  pp.  319,  320  ;  and  compare  p.  312  ; 
Glanvill,  1.  vii.  c.  1  ;  Bracton,  f.  626.  Coke,  who  frequently  in 
his  margin  cites  Britton  upon  this  very  subject,  does  not  appear 
to  have  understood  him  as  contradicting  the  received  doctrine  ; 
*  I  never  read,'  he  says,  '  any  opinion  in  any  booke,  old  or  new, 
against  this  maxime,'  (that  an  inheritance  lineally  descends,  but 
does  not  ascend,)  '  but  only  in  Lib.  Rub.,  vphere  it  is  said.  Si 
quis  sine  liberis  decesseret,  pater  aut  mater  ejus  in  hasreditatem 
succedat,  vel  pater  et  soror,  si  pater  et  mater  desint  '  (Coke 
Litt.  11  a.)  The  authority  cited  by  Coke  as  Liber  Ruber  is  the 
Collection  of  Anglo-Saxon  Laws  known  as  Leges  Henrici  L 
«.  Ixx.  §  20. 


588  >  BRITTON.  [II,  *274 /a 

suffice,  and  then  it  would  resemble  a  banner  ;  but  it  is 
displayed  on  the  one  side  to  show  the  issue  of  male  an- 
cestors, and  on  the  other  to  show  the  issue  of  female 
ancestors. 


CHAPTER  lY. 

Of  the  proceedings  in  a  Plea  of  Right  before  the  Court 
Baron  and  County  Courts  and  of  its  removal  into  the 
Royal  Court. 

1.  "Writs  of  right  patent  ought  to  be  brought  in  the 
courts  of  the  lords  of  whom  the  plaintiffs  claim  to  hold  ; 
and  therefore  if  they  are  brought  or  purchased  in  any 
other  courts  than  those  of  the  chief  lords  the  fees,  such 
chief  lords  shall  have  their  courts  out  of  our  court,  as  soon 
as  they  make  demand  thereof,  and  can  prove  the  fees  to 
be  theirs;  *and  the  writs  and  proceedings  shall  fall  to 
the  ground,  and  the  plaintiffs  shall  remain  in  our  mercy. 

2.  The  plaintiff,  having  purchased  his  writ,  ought  to 
carry,  and  show  it  to  him  to  whom  the  mandate  is 
directed  ;  and  he  forthwith,  without  demanding  pledges 
to  prosecute,  is  bound  to  appoint  him  a  day  at  his  first 
court,  which  ought  to  be  within  three  weeks,  upon  the 
same  fee  ;  and  the  writ  should  be  produced  and  read 
in  full  court,  and  entered  on  the  roll,  and  the  tenant 
summoned  by  award  of  the  court. 

3.  If  the  plaintiff  be  longer  delayed,  and  can  prove 
the  same,  as  hereafter  mentioned,  by  plaint  and  proof, 
he  may  by  reason  of  such  wrong,  and  because  his  lord 


fl,  *275.]  THE  COURT  BARON.  589 

has  failed  to  do  him  right,  waive  the  court  of  his  lord, 
and  plead  in  the  county  court,  whether  the  lord  has  the 
franchise  of  return  of  writs  or  not.  And  thus  in  some 
cases  the  plaint  may  be  removed  out  of  a  court,  and 
afterwards  brought  back  into  it  again.  And  before 
proof  made  of  default  the  plaint  shall  not  be  considered 
as  in  the  county,  but  after  that,  and  not  before,  a  Pone 
will  lie  to  remove  it  before  our  Justices. 

4.  There  are  many  ways  besides  in  which  a  cause  is 
removable  into  the  county  court,  as,  where  the  lord 
refuses  to  intermeddle  therein,  or  because  he  has  no 
court,  or  because  he  has  released  his  court  by  his  letters 
patent ;  also  for  want  of  authority  in  the  lord  and  his 
court,  as  where  the  tenant  vouches  a  warrant  out  of 
his  jurisdiction,  *and  whom  he  cannot  compel  to  appear, 
or  if  the  tenant  cause  himself  to  be  essoined  de  malo 
lecti  elsewhere  than  in  the  jurisdiction  of  his  lord,  or 
because  he  has  not  authority  to  send  the  four  knights 
to  judge  of  the  sickness  for  which  he  is  essoined,  or  if 
the  tenant  put  himself  upon  the  great  assise,  and  for 
many  other  reasons.  Sometimes  also  the  plea  is  remov- 
able by  the  tenant,  as  where  he  does  not  hold  anything 
of  him  to  whom  the  writ  is  directed. 

5.  As  to  summonses  and  defaults  and  essoins  in  the 
courts  of  freemen,  the  practice  ought  to  be  according  to 
the  custom  of  the  country  ;  but  in  the  demanding  of  view, 
vouching  to  warranty,  counting  by  descents  and  resorts, 
defending,  excepting,  and  joining  in  battle,  let  the 
same  order  of  pleading  be  observed  in  the  court  of  a 
freeman  as  is  awarded  in  our  court. 


590  BRITTON.  [IT,  *275  h. 

6.  The  manner  of  proving  the  lord's  court  false, 
where  the  lord  himself  or  the  bailiff  to  whom  the  man- 
date was  directed,  has  failed  to  do  justice,  is  as  follows. 
In  the  first  place,  the  plaintiff  sliould  complain  to  the 
sheriff,  and  produce  the  writ  in  full  county  court,  and 
then,  by  award  of  the  suitors,  and  without  any  security 
to  prosecute  being  found,  the  bailiff  of  the  imndred  or 
some  other  shall  be  commanded  that  in  the  presence 
of  the  neighbours  he  go  and  take  the  oath  of  the  plain- 
tiff and  two  others,  in  the  court  of  the  lord,  if  he  has  a 
court,  or  at  his  mansion,  *or  if  he  has  neither  court  nor 
mansion,  then  upon  the  land  itself,  that  the  lord  has 
failed  to  do  him  right ;  for  it  is  not  sufficient  to  prove 
that  the  court  has  failed  to  do  right,  but  it  must  be 
proved  that  he  to  wiiom  the  mandate  is  directed  failed 
to  do  right,  the  w^ords  in  the  writ  being,  '  And  if  thou 
do  it  not,  the  sheriff  shall  do  it.' 

7.  Therefore  every  plaintiff,  before  the  plaint  is  re- 
movable into  the  county,  ought  to  complain  of  the 
court  to  him  to  whom  the  writ  is  directed.  And  then 
the  lord,  having  heard  the  plaint,  ought  straightway  to 
see  and  examine  the  proceedings,  and  to  hear  the  plain- 
tiff in  the  presence  of  the  suitors,  in  what  point  the 
suitors  have  done  him  wrong;  and  if  he  finds  an  error, 
he  has  authority  to  amend  it,  and  to  amerce  the  suitors. 
And  if  he  neglects  to  do  so,  then  the  complaint  shall 
be  made  to  the  sheriff. 

8.  When  the  bailiff  has  taken  the  oath  of  the  plain- 
tiff and  his  cojurors,  he  is  straightway  to  cause  the 
tenant  to  be  summoned  by  two  freemen  terre-tenants 


II,  *276.]  THE  COURT  BARON".  591 

to  appear  at  the  next  county  court  to  answer  to  such  a 
plaintiff  upon  a  demand  made  against  him  of  so  much 
land  with  the  appurtenances  in  such  a  vill,  according 
to  the  purport  of  the  writ ;  and  he  ought  to  enjoin  the 
summoners  to  be  at  such  county  court  to  prove  the 
summons,  and  also  to  appoint  the  plaintiff  the  same 
day  to  prosecute  his  plaint.  When  the  sheriff,  or  any 
deputy  of  the  sheriff  in  a  county  or  franchise,  fails  to 
do  right  to  the  plaintiff,  if  he  farms  his  office,  he  is 
punishable  *by  imprisonment  and  fine  as  a  despiser  of 
our  mandate ;  and  if  he  be  sheriff  in  fee,  he  hath  de- 
served, if  convicted,  to  lose  the  franchise,  and  to  make 
satisfaction  to  the  plaintiff  for  his  damages. 

9.  When  the  plaint  is  thus  adjourned  into  the  county, 
if  the  lord  of  the  fee  comes  into  court  and  complains  of 
plaintiff,  and  offers  to  show  and  instruct  the  court  that 
the  plaintiff  has  misinformed  the  sheriff  and  the  county, 
and  that  he  himself  never  failed  in  doing  right,  what- 
ever his  court  may  have  done,  he  shall  be  heard,  pro- 
vided he  comes  before  any  essoin  is  adjourned  in  the 
county  either  for  the  plaintiff  or  for  the  tenant.  But 
if  he  waits  till  an  essoin  is  entered,  allowed,  and  ad- 
journed, and  the  plea  has  been  so  long  in  the  county, 
that  upon  the  arrival  of  the  Pone  the  least  spark  of  a 
proceeding  in  the  county  court  can  be  discerned,  the 
lord  of  the  fee  cannot  afterwards  insist  upon  his  juris- 
diction.^     If  the  sheriff  maliciously  return  that  there 

1  It  may  be  seen  from  the  above,  that  although  the  jurisdiction 
of  the  lord  was  in  theory  maintained,  the  utmost  facility  was 
afforded  for  evading  it.     And  it  was  found  that  in  practice  most 


592  BRITTON.  [II,  *276  h. 

is  no  plaint  in  the  county  court  according  to  the  tenor 
of  the  Pone^  yet  the  Pone  shall  not  be  lost,  if  by  the 
dates  of  the  writ  patent  and  of  the  Pone  it  may  be  pre- 
sumed in  favour  of  the  plaintiff  that  the  plaint  may 
have  been  in  the  county  ;  and  afterwards  the  plea  shall 
take  its  course  according  to  its  nature. 

10.  At  the  day  of  the  summons  at  the  county  court 
the  parties  may  be  essoined,  and  to  him  who  shall  be 
essoined  another  day  shall  be  given  by  his  essoiner  at 
the  next  county  court.  At  which  day  the  person  who 
before  appeared  may  cause  himself  to  be  essoined,  and 
so  after  each  appearance,  though  it  happen  a  thousand 
times,  *except  in  special  cases,  as  will  appear  in  the 
chapter  of  essoins  de  malo  veniendi.  If  the  plaintiff 
makes  default,  and  the  tenant  appears,  let  it  be  awarded 
that  the  tenant  go  without  day,  and  that  the  plaintiff 
take  nothing  by  his  writ,  but  remain  in  our  mercy, 
that  is,  if  the  default  before  view  ;  but  if  default  be 
made  after  view,  let  it  be  awarded  that  the  tenant  re- 
main in  his  seisin  quit  of  the  plaintiff  and  his  heirs  for 
ever  after,  and  the  plaintiff  be  in  mercy.  And  if  both 
make  default,  then  one  default  ma}'^  be  set  against  the 
other,  the  tenant  not  having  had  judgment  to  depart 
without  day. 

11.  If  the  tenant  makes  default,  and  the  summons  is 

lords  were  contented  to  waive  their  jurisdiction  respecting  the 
title  to  land,  for  an  important  reason,  which  we  learn  from 
Hengham,  namely,  that  little  or  no  profit  accrued  to  the  lord 
from  holding  such  pleas  in  his  court.  Hengham  Magna,  c.  3. 
p.  11. 


II,  *277.]  THE  COURT  BAKOK.  593 

witnessed  by  the  summoners,  it  shall  be  awarded,  when 
the  default  is  before  appearance,  that  the  land  de- 
manded be  taken  into  our  hand  according  to  the  terms 
of  the  great  Cape^  or  otherwise  according  to  the  usage 
of  the  place.  So  likewise,  where  the  tenant  makes  de- 
fault at  the  first  county  court,  if  the  bailiff  with  the 
summoners  attest  the  summons;  and  this  summons  the 
tenant  cannot  defend  by  his  law;  and  thus  the  bailiff, 
with  the  testimony  of  summoners,  bears  record  of  sum- 
monses. And  if  the  tenant  makes  default  after  default, 
judgment  shall  be  immediately  given  for  the  plaintiff, 
saving  to  the  tenant  his  right  to  recover  when  he  thinks 
good.  *In  like  manner  it  shall  be,  if  the  tenant  does 
not  within  fifteen  days  replevy  the  land  taken  into  our 
hands,  unless  the  case  is  affected  by  deceit.  What  is 
here  wanting  upon  the  subject  of  defaults  in  general 
shall  be  more  particularly  supplied  hereafter.^ 

12.  When  the  parties  have  appeared  in  court,  and  the 
plaintiff  has  counted  his  count  against  the  tenant,  and 
the  tenant  has  defended  the  wrong  by  proper  words  of 
defence,  then  he  may  vouch  to  warranty,  if  he  has  any 
one  to  vouch,  and  if  the  warrant  does  not  live  within 
the  distress  of  the  sheriff  of  that  county,  then  the 
voucher  must  be  aided  by  the  following  writ  directed 

*  The  further  explanation  of  the  law  of  defaults  here  promised 
is  not  found  in  the  treatise  as  it  now  exists.  The  same  observa- 
tion applies  to  the  description  of  trial  by  battle  referred  to  iu 
s.  14.  See  the  Editor's  Introduction,  p.  xlv.  The  subject  of 
defaults  is  more  fully  treated  in  Bracton,  f.  364  6-380;  Fleta, 
p.  395-400. 
38 


594  BRITTOK  [II,  *27Y  h, 

to  the  sheriff  of  that  county  where  the  warrant  has  his 
land.  '  Command  such  an  one  that  he  warrant  to  such 
an  one  so  much  land  with  the  appurtenances  in  such  a 
vill;  and  that,  if  he  does  not  do  it,  he  be  at  the  first  as- 
sises when  the  Justices  make  their  eyre  in  those  parts 
to  show  why  he  has  not  warranted.' 

13.  If  the  vouchee  will  thereupon  enter  into  warranty 
in  the  county,  it  is  well ;  if  not,  let  the  plaint  stand  over 
to  the  eyre,  if  it  be  not  first  removed  before  our  Justices. 
For  in  such  case  the  county  court  will  have  no  author- 
ity to  proceed  further  in  the  action.  And  when  the 
plea  of  warranty  is  tried  before  our  Justices  in  eyre, 
then  they  may  either  determine  the  principal  plea 
themselves,  or  send  it  to  be  determined  in  the  county. 
*But  if  the  plea  be  in  the  meantime  removed  before  our 
Justices,  then  the  adjournment  in  eyre  is  annulled,  and 
the  tenant  shall  vouch  to  warranty  again  in  the  plea  of 
Pone.  "Where  the  warrant  is  under  the  age  of  twenty- 
one  years,  and  comes  into  court  to  prove  his  age,  the 
principal  plea  and  the  plea  of  warranty  also  before  the 
Justices  in  eyre,  are  suspended  until  the  warrant  is  of 
age. 

14.  If  the  tenant  defends  himself  by  battle,  the  pro- 
ceedings shall  be  as  hereafter  mentioned.  If  by  the 
great  assise,  then  let  a  day  be  given  at  the  next  county 
court,  and  let  the  tenant  in  the  meantime  obtain  a  letter 
from  the  Chancery ;  and  by  his  own  mouth  he  is  required 
to  say  that  he  is  tenant,  and  by  what  words  he  has  put 
himself  on  the  great  assise ;  ^  he  shall  then  have  a  writ 

1  The  text  of  this  sentence,  either  from  corruption  or  other- 


II,  *278.]  THE  COUKT  BARON.  595 

to  the  sheriff  to  cause  the  plea  to  cease  until  the  eyre, 
which  writ  shall  be  enrolled  by  way  of  precaution,  on 
account  of  the  attachment  which  follows,  if  the  sheriff 
refuses  to  cease  tliereupon.  And  when  the  tenant  has 
purchased  this  writ,  then  let  the  plaintiff  sue  out  an- 
other writ  to  the  sheriff  to  cause  the  great  assise  to  be 
summoned  against  the  coming  of  the  Justices  for  the 
hearing  of  all  pleas.  If  the  tenant  has  omitted  to  ob- 
tain the  prohibition  aforesaid,  then  at  the  next  county 
court,  or  at  the  day  given  to  the  essoiner  of  the  tenant, 
the  plaintiff  shall  recover  seisin  of  his  demand  by  the 
default  of  the  tenant. 

15.  Actions  are  removed  out  of  the  county  court  in 
several  ways ;  sometimes  at  the  instance  of  the  plaintiff, 
and  this  may  be  without  assigning  any  cause ;  *and 
sometimes  at  the  request  of  the  tenant;  but  this  ought 
not  to  be  done  without  affirmation  of  the  cause  in  the 
body  of  the  writ  of  Pone,  which  cause  ought  not  to  be 
allowed  before  it  has  been  tried  in  full  county  by  the 
oath  of  the  tenant  with  two  cojurors.^ 

wise,  is  somewhat  dislocated.  I  have  restored  it  in  the  trans- 
lation to  what  appears  to  have  been  the  proper  order.  See  Brac- 
ton,  f.  331  ;  Fleta,  p.  377. 

*  The  reason  for  making  this  difference  between  the  plaintiff 
and  the  tenant  seems  to  have  been,  that  while  the  latter  might 
desire  to  remove  the  cause  for  the  purpose  of  delay,  the  former 
could  have  no  interest  in  so  doing.  (Hengham  Magna,  c.  iv. 
p.  14.)  The  cause  assigned  by  the  tenant  might  be  a  connexion 
between  the  sheriff  and  the  plaintiff,  or  the  predominating  in- 
fluence of  the  latter  in  the  county,  or  that  the  tenant  was  abroad, 
or  too  infirm  to  attend  the  county  court.  (Bracton,  f.  332  b ; 
Hengham  Magna,  c.  iv.  p.  14.) 


596  BRITTOK  [II,  *278  h. 

IG.  If  the  cause  be  removed  before  our  Justices  at  the 
request  of  the  tenant,  and  he  makes  default  upon  the 
first  day,  and  the  plaintiff  proffers  himself  and  demands 
judgment  of  the  default,  the  plaintiff  shall  recover  seisin 
of  his  demand,  and  the  tenant  remain  in  mercy.  And 
if  the  cause  is  removed  out  of  the  county  at  the  instance 
of  the  plaintiff,  and  he  makes  default  on  the  first  day, 
and  the  tenant  is  essoined,  and  his  essoiner  leaves  the 
court,  having  judgment  to  go  without  day,  although  the 
plaintiff  keeps  by  him  the  writ  patent,  if  he  brings  a 
fresh  Pone  to  remove  the  plaint  out  of  the  county,  this 
new  writ  will  be  of  no  avail,  but  must  be  returned  in 
this  manner,  that  no  plaint  is  depending  in  the  county 
court  according  to  the  tenor  of  the  writ,  inasmuch  as 
by  another  like  writ  it  was  removed  out  of  the  county 
before  the  Justices.  And  thus  all  the  plea  will  have 
to  be  begun  afresh,  but  not  by  the  same  writ. 

17.  Sometimes  the  action  is  by  necessity  moved  out 
of  the  county  court  at  the  instance  of  the  plaintiff,  as, 
where  the  tenant  is  privileged,  as  the  Templars,  Hos- 
pitallers, and  others  are,  *who  have  this  franchise  by 
royal  charters,  that  they  need  not  to  answer  any  plea 
elsewhere  than  before  our  Justices.  If  nevertheless 
they  have  anywhere  entered  upon  their  answer,  they 
cannot  afterwards  change  their  minds  or  withdraw. 
Sometimes  also  of  necessity,  when  the  county  court  has 
no  authority  to  proceed  further  in  the  plea,  as  where 
bastardy  is  alleged,  or  marriage  is  denied,  or  in  other 
cases  to  the  cognizance  of  which  the  jurisdiction  of  the 
county  does  not  extend.     Sometimes  also  the  plea  is 


II,  *279.]  IN  A  PLEA  OF  EIGHT.  597 

removed  on  account  of  the  folly  of  the  suitors  of 
the  county,  as  where  battle  is  awarded  and  joined 
contrary  to  the  common  law  and  the  common  usages 
of  this  realm.  Sometimes  also  by  reason  of  the 
difficulty  of  judgment,  and  for  many  other  causes. 
The  petty  writ  of  right,  which  contains  the  clause, 
'according  to  the  custom  of  the  manor,'  and  which 
was  provided  in  favour  of  sokemen,  is  never  removable 
before  the  Justices. 


CHAPTER  V. 

Of  SuniTnons  in  a  Plea  of  Might. 

1.  The  plaint  being  thus  removed  into  the  great  court 
at  the  instance  of  the  plaintiff,  the  tenant  must  be 
summoned  to  be  there  at  a  certain  day  to  answ(^r  the 
plaintiff  according  to  the  form  of  the  plaint.  There  is 
summons,  after-summons,  and  resummons.  And  there 
is  also  a  precept  which  is  not  properly  a  ^summons,  as 
where  we  should  command  any  one  to  come,  or  com- 
mand the  sheriff  to  cause  him  to  come,  or  that  he  have 
or  attach  such  an  one,  or  cause  him  to  know  that  he 
be  on  such  a  day  in  such  a  place.  But  of  proper 
summonses,  some  are  general  and  some  special.  A 
general  summons  is  one  which  concerns  an  entire  com- 
munity, as  the  common  summons  in  eyre,  which  is 
solemnly  proclaimed  throughout  cities,  boroughs,  and 
markets,  and  in  other  like  cases.  Such  summonses  no 
single  person  can  deny  or  defend  by  his  law.     Special 


598  BRITTON.  [II,  *2T9  h. 

summons  is,  for  example,  where  summons  is  made  upon 
a  certain  plea  to  certain  persons.  And  so  possibly 
one  essoin  might  lie  for  both  summonses ;  as  if  any  one 
who  is  impleaded  has  his  day  of  plea  on  the  first  day 
of  the  eyre,  and  he  causes  himself  to  be  essoined,  the 
essoin  will  excuse  his  absence  as  well  for  the  general 
as  the  special  summons. 

2.  All  persons  ought  not  to  be  summoned.  For  an 
infant  under  age  is  not  capable  of  receiving  any  sum- 
mons except  through  his  guardian;  nor  a  person 
detained  in  prison,  although  he  ma}'^  cause  a  summons 
to  be  made  without  guardian  ;  nor  a  madman,  nor  one 
otherwise  deprived  of  sense,  as  an  idiot ;  nor  deaf  and 
dumb  persons ;  nor  married  women  without  their 
husbands ;  nor  a  canon  removable  without  the  dean 
*and  chapter,  nor  other  persons  in  religion  removable 
without  the  abbot  or  their  prior.^ 

3.  When  any  one  then  is  to  be  lawfully  summoned, 
wherever  he  be  found  in  the  count^'^  where  the  demand 
is  made,  he  may  be  reasonably  summoned  in  his  proper 
person  by  two  freemen  terre-tenants  of  the  county. 
For  no  one  is  obliged  to  receive  a  summons  out  of  the 

*  The  word  '  removable '  appears  to  be  applied  to  tlie  officers 
of  a  religious  house  holding  office  during  the  pleasure  of  their 
superior.  See  1.  i.  c.  29.  s.  6,  and  note  there,  vol.  i.  p.  159.  The 
parallel  passage  in  Bracton  points  to  the  existence  in  some  cases 
of  an  irremovable  officer  charged  with  the  duty  of  representing 
tlie  religious  foundation  in  court.  '  Item  viri  religiosi '  [sum- 
moneri  debent]  '  per  procuratores  sindicos  et  actores  perpetuos 
et  non  amotibiles,  et  qui  tales  sint,  quod  possint  lucrari  et  per- 
dere  et  rem  in  judicium  deducere.'    Bracton.  f.  336  h. 


II,  *280.]        IN  A  PLEA  OF  RIGHT.  599 

precinct  of  the  county,  unless  from  the  mouth  of  a 
Justice  himself.  And  if  he  is  not  found,  then  it  is 
sufficient  to  make  the  summons  at  his  house,  so  that  he 
may  be  informed  thereof  when  he  returns.  And  if 
the  tenant  has  several  houses,  let  it  be  made  at  that 
which  is  upon  the  land  demanded,  if  he  be  resident 
there,  or  has  any  family  there  who  can  inform  him  of 
the  summons.  And  if  no  land  is  demanded,  let  it  be 
made  at  that  house  where  he  chiefly  resides ;  and  if  he 
has  no  house  in  the  county,  then  it  is  sufficient  to  make 
■  the  summons  in  the  fee  where  he  is  distrainable,  with 
a  great  number  of  neighbours  for  witnesses. 

4.  When  any  person  is  to  be  reasonably  summoned, 
he  ought  to  have  fifteen  days  at  least  to  prepare  his 
lief ence.  If  less  time  is  given,  and  the  person  sum  moned 
<jhooses  to  challenge  the  summons,  it  is  of  no  force  ;  but 
the  summoners  ought  to  be  in  mercy,  if  they  are  con- 
victed of  their  unreasonable  summons.  Yet  there  are 
some  causes  which  are  so  favoured,  that  reasonable 
summons  is  not  required  in  them,  as  in  causes  touching 
ourselves  or  our  kindred,  ambassadors  from  foreign 
countries,  merchants,  and  crusaders.  So  likewise  in 
our  eyres,  or  in  the  eyre  of  *our  Justices,  and  in  dis- 
seisins, intrusions,  abatements,  and  fresh  force.  Never- 
theless if  any  one  after  such  unreasonable  summons 
causes  himself  to  be  essoined,  or  appears  without 
challenging  the  summons,  or  if  he  accepts  a  day  of 
grace,  lie  cannot  afterwards  challenge  the  summons  as 
unreasonable.  When  the  tenant  has  thus  been  rea- 
sonably summoned,  he  may  not  from  that  time  absent 


600  BRITTOK.  [II,  *280  5. 

himself  out  of  the  realm  or  elsewhere,  though  he  after- 
wards procure  our  letters  of  protection ;  but  the 
plaintiff  shall  recover  his  demand,  unless  the  plea  be 
defended  by  the  tenant  or  his  attorney. 

5.  In  every  summons  it  is  proper  to  have  the  warrant 
or  transcript  sealed  with  his  known  seal,^  so  that  the 
tenant  may  know  before  what  judge  he  is  summoned, 
and  may  be  able  to  arm  himself  with  exceptions 
against  the  action  of  the  plaintiff ;  otherwise  such 
summons  shall  be  unreasonable  and  of  no  effect,  and 
the  tenant,  upon  challenging  the  summons,  must  be 
summoned  again  either  by  the  Justice  in  court  or 
else  by  summoners.  It  is  said,  before  what  judge, 
because  one  is  not  obliged  to  appear  before  every  one 
who  pretends  to  be  a  judge ;  for  no  one  can  have 
authority  to  cause  any  to  be  summoned  except  from  us ; 
and  though  he  should  have  authority  from  some  Justice, 
that  is  of  no  value,  because  a  Justice,  cannot  make 
another  *  Justice,  nor  authorize  any  person  to  bear  rec- 
ord or  pass  judgment  without  warrant  from  us.  And 
it  is  a  general  rule  of  law  that  no  one  shall  be  affected 
by  a  judgment  pronounced  by  one  who  is  not  truly  his 
judge.  When  any  one  therefore  has  had  a  reasonable 
summons  to  appear    before  a  person  who  has  power 

1  The  written  warrant  for  summons  is  not  mentioned  in  Brac- 
ton  ;  and  in  Fleta,  although  the  warrant  is  mentioned,  there  is 
no  notice  of  its  bearing  any  seal.  The  seal  required  would  appear 
to  be  the  seal  of  the  sheriff  of  the  county  where  the  appearance 
was  to  be,  whether  in  the  county  court  or  before  the  Justice* 
Itinerant. 


II,  *280  h.]        IN  A  PLEA  OF  RIGHT.  601 

and  authority  of  judging  from   us,  it  is  his  duty   to 
appear  accordingly. 

6.  And  because  it  may  happen  that  the  blame  ought 
to  fall  upon  the  sheriff,  it  is  proper  to  know  who  is  in 
fault,  whether  the  sheriff  or  the  summoners  ;  and  if  it 
be  found  that  the  sheriff  did  not  direct  any  one  to 
make  the  summons,  let  him  be  punished  for  his  neglect, 
unless  he  has  a  reasonable  excuse,  as  that  the  plaintiff 
did  not  find  any  security  to  prosecute  his  plaint,  or 
that  the  writ  came  so  late  that  he  could  not  execute 
it,  or  that  he  received  the  writ  out  of  his  count}'^,  and 
before  it  came  to  him  he  was  obliged  by  such  a  precept 
to  go  elsewhere  into  some  distant  place ;  and  by  many 
other  reasons  the  sheriff  may  reasonably  excuse  him- 
self. And  if  the  day  contained  in  the  writ  is  passed, 
then  the  plaintiff  must  purchase  a  new  writ.  So  like- 
wise where  the  summoners  did  not  execute  the  sum- 
mons, although  they  were  enjoined  to  do  so.  This  fact 
the  summoners  may  defend  by  their  law,  although  the 
sheriff  brings  suit  to  prove  it.^ 

1  This  is  probably  net  to  be  understood  of  the  case  where  the 
summons  was  publicly  ordered  in  the  county  court ;  in  which 
case,  according  to  Glanvill,  Bracton,  and  Fleta,  the  suitors  bore 
record,  which  could  not  be  contradicted  by  the  summoners. 
Possibly  the  practice  of  ordering  summons  in  the  county  court, 
which  in  the  time  of  Glanvill  was  the  regular  course,  had  now 
become  unusual.  See  Glanvill,  li.  1.  c.  30 ;  Bracton,  f.  336 ; 
Fleta,  p.  380. 


^02  BEITTON.  [II,  *281. 


^CHAPTER  V 

Of  Essoins. 

1.  No  person  ought  to  depart  unpunished  after  he 
has  been  reasonably  summoned,  and  does  not  think  fit 
to  appear  in  court,  unless  upon  some  reasonable  excuse, 
whence  essoins  arise,  as  the  service  of  God,  or  of  our- 
selves, accusation  of  crime,  sickness,  force.  Service  of 
God,  such  as  pilgrimage,  which  ought  to  be  an  im- 
portant excuse,  and  favoured  according  to  the  nature 
of  it,  provided  that  no  summons  arrived  before  the 
journey.  Our  service,  as  where  a  man  is  in  our  forces 
for  the  defence  of  us,  our  people,  or  our  realm.  Ac- 
cousation  of  crime,  for  if  any  person  be  indicted  or  ap- 
pealed of  life  and  limb,  he  is  never  obliged  to  answer 
in  a  matter  involving  loss  of  land  or  of  chattels,  until 
he  has  defended  himself  in  the  more  weighty  matter. 
Sickness,  as  in  the  case  of  those  who  put  themselves 
in  motion  towards  the  court,  and  are  seized  with  sick- 
ness by  the  way.  Force,  as  in  the  case  of  those  who 
are  hindered  by  imprisonment,  or  by  robbers  or  other 
enemies  on  the  road,  or  the  breaking  of  bridges  or 
other  passages,  storms,  or  want  of  boats  or  ships. 

2.  If  any  one  therefore  desires  to  excuse  his  absence, 
let  him  presently  send  some  excuser,  who  may  relate 
in  court  the  impediment  as  it  has  occurred.     And  if 


II,  *2S1  h,  282.]         OF  ESSOINS.  603 

tiie  latter  does  not  cause  the  *excuse  to  be  entered  on 
the  same  day  as  is  specified  in  the  writ,  or  as  was  be- 
fore given  to  the  party  in  court,  the  excuse  will  not 
afterwards  be  allowed.  Such  excuses  are  called  es- 
soins, and  the  excusers  essoiners. 

3.  However  the  essoin  is  enrolled,  the  purport  ought 
to  be  as  follows :  '  John,  the  essoiner  of  Peter,  came 
the  first  day,  and  showed,  that  whereas  Peter  his  mas- 
ter was  summoned  to  be  in  this  court  on  this  day  to 
answer  to  Robert  of  a  plea  of  land,  the  same  Peter, 
before  any  summons  was  made  to  him,  had  set  out 
from  his  house  on  a  pilgrimage  in  the  service  of  the 
Heavenly  King  towards  parts  beyond  sea  to  that  holy 
sepulchre  at  Jerusalem,  in  a  general  passage  with  other 
crusaders,'  if  there  was  a  general  passage  at  that  time, 
or  else,  'on  an  ordinary  passage;'  or,  'before  any 
summons  was  made  upon  him,  he  went  upon  the  king's 
service,  in  pursuance  of  a  precept  in  that  behalf  as  upon 
a  service  due  for  his  land.'  In  the  above  form  he  may 
cause  himself  to  be  essoined  of  the  service  of  the 
Heavenly  or  Earthly  King.  Or  thus:  'such  a  sick- 
ness overtook  him  in  journeying  towards  this  court, 
that  he  could  not  come  forward  to  gain  or  lose,  but 
had  himself  carried  back  to  his  own  home  or  elsewhere.' 
Or,  '  such  other  hindrance  came  upon  him  by  the  way, 
that  he  could  not  proceed  to  gain  or  lose  ; '  and  thus 
Jbe  excuses  himself  by  way  of  essoin  de  malo  veniendi  ; 
and  therefore  the  essoiner  ought  to  tender  averment. 

*4.  But  because  the  proof  of  the  essoin  is  the  business 
of  his  master  and  not  of  the  essoiner,  and  because  it  is 


604  BRITTON.  [II,  *282  h. 

not  yet  ascertained  whether  he  is  a  true  or  a  false  mes- 
senger, or  whether  his  master  will  acknowledge  him  or 
not,  it  is  customary  for  theessoiners  of  rich  and  power- 
ful persons,  as  earls,  barons,  and  all  others  holding  by 
barony,  to  find  pledges  to  produce  their  lords  at  the 
day  appointed,  so  that  such  essoiners  may  not  escape 
unpunished,  if  they  are  not  warranted  in  their  message. 
But  inasmuch  as  this  would  be  oppressive  if  it  were 
done  with  the  essoiners  of  poor  people,  it  is  permitted, 
out  of  favour  to  such  persons,  that  the  essoiners  of  all 
other  sorts  of  people  do  promise  only,  without  more,, 
to  produce  their  warrants  at  the  day  appointed. 


CHAPTER  YII. 
Of  the  Essoin  Aq  wltTn,  va-Axe. 

1.  Essoins  are  briefly  divided  into  essoins  de  malo 
veniendi  and  essoins  de  malo  lecti.  But  the  first  divi- 
sion is  again  divided  into  those  de  ultra  mare  and 
those  de  citra  viare.  And  of  those  de  ultra  mare,  some 
are  beyond  the  Grecian  sea,  and  some  simply  beyond 
sea,  as  at  Rome  or  at  Saint  James.  *And  of  those  be- 
yond the  Grecian  sea,  some  are  in  a  simple  pilgrimage 
to  the  sepulchre  of  Jerusalem,  others  to  the  same  place 
in  a  general  pilgrimage. 

2.  In  essoins  de  citra  7nare  the  impediment  some- 
times arises  from  sickness,  and  sometimes  from  other 
hindrances.  And  of  those  from  sickness,  some  arise 
from  sickness  overtaking  the  party  on  the  road,  and 
some    from  disease,  which  is  called  malum  lecti,  ?lX\({ 


II,  *283.]  DE  ULTRA  MARE.  605 

some  from  an  illness  coming  on  in  the  town  where  the 
court  is  held.  Of  other  impediments,  some  arise 
from  the  senses,  as  in  cases  of  idiots,  persons  deaf  and 
dumb,  and  others  who  are  not  of  sufficient  capacity  to 
receive  a  summons  ;  some  arise  from  hindrances  of  im- 
prisonment, or  of  roads  ;  some  from  the  service  of  the 
earthly  king  ;  and  from  accusation  of  felon3\ 

;i  In  the  essoin  beyond  the  Grecian  sea  in  a  general 
pilgrimage,  it  must  be  observed  whether  there  has 
been  within  the  year  a  general  passage  of  any  Chris- 
tian king,  or  other  person  sent  by  the  Pope  with  a 
great  host  of  Christians  ;  for  then  this  essoin  is 
allowable,  and  the  plea  will  stand  over  without  day, 
out  of  favour  for  the  pilgrims  of  God,  on  account  of 
the  privilege  of  those  who  have  taken  the  cross,  until 
the  return  or  death  of  the  pilgrim.  There  are  some 
however  who  obtain  our  letters  patent  of  protection  to 
be  in  force  for  one,  two,  or  three  years,  and  who  never- 
theless by  virtue  of  our  letters  patent  do  also  make 
general-  attorneys ;  and  such  persons  do  well  and 
wisely.  *For  no  great  lord  or  knight  of  our  realm 
ought  to  travel  forth  of  it  without  oui*  licence,  since 
by  that  means  the  kingdom  might  be  left  destitute  of 
able  persons;  and  such  letters  ought  to  be  presently 
shown  in  full  county  or  hundred  court,  or  at  public 
places.  And  if  there  has  not  been  an}^  general  passage 
to  the  llol}^  Land  within  the  year,  then  let  this  essoin 
be  turned  into  the  essoin  beyond  the  Grecian  sea  to 
the  Holy  Land  in  simple  pilgrimage.  This  essoin  is 
the  first  of  all  the  essoins  ;  for  if  it  be  cast  after  any 


606  BKITTON.  [II,  *283  *. 

of  the  others,  it  will,  from   its   nature,  never  be   al- 
lowed. 

4.  In  the  essoin  beyond  the  Grecian  sea  in  simple 
pilgrimage  the  term  of  a  year  and  a  day  is  to  be  granted. 
Andif  the  essoiner  sees  that  he  cannot  be  warranted 
at  the  end  of  the  year,  then  again  the  essoin  de  ultra 
mare  simply  shall  take  place,  which  signifies  a  common 
pilgrimage  to  Rome  or  Saint  James  ;  and  such  essoin 
shall  be  allowed,  and  the  adjournment  shall  be  for  the 
period  of  forty  days,  and  one  flood,  and  one  ebb  of  the 
sea.  And  if  the  essoiner  perceives  that  his  master 
does  not  come  to  warrant  him,  then  again  the  essoin 
de  malo  veniendi  shall  lie,  in  which  a  term  of  fifteen 
days  at  least  ought  to  be  given.  *And  if  he  is  still  pre- 
vented from  appearing  by  sickness,  then  a  distinction 
must  be  made,  whether  he  lies  sick  on  his  road,  or  in 
the  town  where  the  court  is  held,  for  if  on  the  road,^  this 
gives  rise  to  an  essoin  de  malo  lecti  ;  and  this  essoin 
must  be  made  by  two  messengers  or  friends,  and  not  \)\ 
essoiners,  as  shall  be  hereafter  mentioned.  If  he  lies 
in  the  town  where  the  Court  is,  then  the  essoin  de  malo 
villas  takes  place,  as  shall  be  noticed  in  its  turn.  And  if 
the  essoinee  does  not  then  appear  to  warrant  the  es- 
soiner, then  and  not  before  the  land  is  to  be  taken  into 
our  hand  by  way  of  distress,  unless  we  have  received 
his  possessions  under  our  protection  by  our  letters  pa- 
tent, which  suspend  all  pleas  but  four.^ 

I  should  prefer  to  read  a  sa  masonn,  '  at  home,'  here  and  in 
the  line  above  ;  but  I  find  no  authority  for  it. 
2  Five  kinds  of  actions  are  mentioned  in  Fleta  as  not  being 


II,  *284.]  DE  ULTRA  MAKE.  607 

5.  The  manner  of  entering  essoins  is  as  follows : 
'  John,  who  is  gone  over  in  a  general  passage  of  pil- 
grims to  the  Holy  Land,  against  Peter,  of  a  plea  of 
land,  by  such  an  one.'  And  if  in  a  simple  pilgrimage, 
then  thus  :  '  John,  who  is  gone  in  a  pilgrimage  to  the 
Holy  Land,  against  Peter,  of  a  plea  of  land,  by  such 
an  one.'  And  if  in  a  more  ordinary  pilgrimage,  then 
thus :  '  John,  who  is  gone  across  the  sea  in  a  pilgrim- 
age, against  Peter,  of  a  plea  of  land,  by  such  an  one,' 
whether  it  be  the  sea  of  France,  Ireland,  or  Scotland, 
which  he  has  crossed.  If  it  be  an  essoin  de  tnalo 
veniendi,  whatever  the  hindrance  be,  whether  *sick- 
ness,  imprisonment,  hindrance  of  passage,  or  other, 
then  thus  :  '  John  against  Peter,  of  a  plea  of  land,  by 
such  an  one.' 

6.  If  several  holding  in  common  by  one  title  are  es- 
soined, then  let  the  essoin  be  entered  according  as  they 
please,  either  thus,  '  John  against  Peter  and '  the  others 
named  in  the  writ,  or  against  each  person  severally. 
Nevertheless  they  may  be  all  essoined  by  oneessoiner. 
And  if  part  cause  themselves  to  be  essoined  and  part 
not,  then  it  will  be  necessary  to  mention  the  names  of 
those  who  are  essoined,  and  take  no  notice  of  the 
others  who  are  not  essoined,  as  thus  :  '  John  and  the^ 

stayed  by  letters  of  protection,  namely,  the  assises  of  novel  dis- 
seisin, raortdancester,  and  last  presentation,  and  the  actions  of 
quare  impedit  and  dower  unde  nihil  hdbet.  (Fleta,  p.  383.  §  2). 
A  note  in  MS.  Z  mentions  the  same  actions,  omitting  the  assise  of 
mortdancester,  and  adding  plaints  commenced  before  Justices- 
in  eyre. 


608  BRITTON.  [II,  *284 1. 

others  named  in  the  writ  against  Peter,  or  against  P. 
M.  and  R.'  But  it  is  otherwise  with  the  essoins 
of  several  persons  holding  by  different  rights  al- 
though they  hold  or  demand  in  common.  For  in  such 
cases  the  entry  must  be  thus  :  'John  against  Peter, 
Thomas,  and  Simon,  of  such  a  plea,  by  such  an  one  ; ' 
or  thus  :  '  Peter  against  John,  Thomas  against  John,' 
and  so  severally  of  all  the  rest  ;  and  in  that  case  every 
tenant  who  causes  himself  to  be  essoined  must  have  a 
separate  essoiner. 


CHAPTER  YIIL 

Of  the  Essoin  founded  on  the  King's  Service. 

The  essoin  de  servitio  regis  may  be  received  at  any 
period  in  those  cases  where  it  is  allowable  ;  for  it  is  in 
some  cases  allowable,  and  in  some  not.  It  is  never  to 
be  allowed  in  any  of  the  four  petty  assises,  nor  in  a 
plea  of  dower  where  a  widow  complains  that  she  has 
nothing  of  her  dower,  nor  in  attaints,  *nor  in  certifica- 
tions, nor  in  any  plea  where  the  plaintiff  is  under  age. 
Neither  does  it  lie  for  any  person  who  does  not  serve  us 
in  chief,  although  he  performs  his  service  to  some  one 
belonging  to  us ;  nor  is  it  to  be  allowed  to  those  who 
do  service  to  us,  unless  they  are  with  us  by  our  com- 
mand in  order  to  perform  the  service  to  which  they  are 
bound  by  reason  of  some  tenement.  To  such  persons 
our  Chancellor  ought  to  grant  a  writ  to  warrant  their 
essoiners,  and   excuse   their  absence,  so  long  as  they 


II,  *285.]  DE  MAl.O  YENIENDI.  609 

continue  with  us  in  such  services  ;  and  if  any  writ  be 
otherwise  granted,  we  will  that  such  writs  be  impeached 
and  held  bad. 


CHAPTER  IX. 

Of  the  Essoin  de  Malo  veniendi. 

Neither  the  essoin  de  malo  veniendi  nor  any  other 
essoin  lies  for  any  person  under  age,  because  an  infant 
cannot  warrant  any  essoiner.  For  warranty  of  essoin 
is  nothing  else  but  swearing  upon  the  evangelists  that 
the  cause  of  his  absence  was  true,  according  as  he  was 
essoined  at  the  former  day.  Neither  does  it  lie  in  an 
accusation  of  felony  ;  nor  in  the  person  of  disseisors  or 
redisseisors  ;  nor  for  those  impleaded  of  hamsoken,  or 
of  fresh  force,  or  of  abatement ;  nor  in  pleas  de  vetito 
namio  in  the  person  of  the  defendants ;  *nor  for  such  as 
are  let  by  bail  to  be  answered  for  by  others,  body  for 
body ;  nor  in  the  persons  of  those  whom  the  sheriff  is 
commanded  to  cause  to  come,  or  to  cause  to  know  that 
they  be  there  if  they  will ;  nor  of  those  who  have  made 
attorneys  in  court,  unless  the  attorneys  be  also  essoined ; 
nor  for  one  attorney,  where  two  have  been  made  in  one 
plea  with  several  powers,  unless  both  be  essoined  ; 
neither  does  the  essoin  lie  where  the  adverse  parties  are 
dead,  or  have  not  pursued  their  writs  or  plaints,  or 
where  the  writ  does  not  agree  Avith  the  essoin  ;^  nor 

^  This  appears  to  be  mistaken  rendering  of  the  words  of  Brac- 
ton,  ubi  breve  non  convenit  petition! .    The  meaning  in  Bracton 
39 


610  BEITTON.  [II,  *285  h. 

ill  those  cases  where  the  sheriff  is  commanded  to  distrain 
by  land  and  chattels  ;  nor  where  the  parties  are  ad- 
journed from  one  day  to  the  next ;  nor  where  they 
have  agreed  to  come  without  essoin  ;  nor  after  day  of 
grace  given  by  consent ;  nor  where  the  plea  is  suspended 
for  default  of  jurors,  except  for  the  defendant,  and 
that  only  once  ,•  nor  where  the  party  essoined,  or  his 
attorney,  hath  been  seen  in  court  in  the  meantime  be- 
fore the  adjournment  of  the  essoin,  and  the  Justices 
have  taken  notice  thereof  ;  neither  does  an  essoin  ever 
lie  immediately  after  default,  unless  by  consent. 


^CHAPTER  X. 

Of  Attorneys. 

1.  Attorneys  cannot  be  made  by  every  one ;  for  an 
infant  under  age,  a  deaf  and  dumb  person,  an  idiot,  a 
man  simply  mad  or  otherwise  without  discretion,  a 
person  accused  of  felony,  or  any  one  who  is  forbidden 
by  us  to  do  so,  or  a  leper  expelled  from  society,  cannot 
make  an  attorney. 

2.  Of  attorneys,  some  are  general  and  some  special. 
General  attorneys  are  made  in  two  ways,  that  is  to 
say,  either  by  our  letters  patent,  or  by  appointment  of 
parties  before  Justices  in  eyre.  Those  attorneys  who 
are  made  by  our  letters  patent  have  sometimes  more 

seems  to  be,  that  when  the  wliole  proceeding  is  void,  as  wliere 
the  plaintiff  has  not  obtained  a  writ  suitable  to  his  plaint,  the 
essoin  is  null.     See  Bracton,  f.  341  ;  Fleta,  p.  384  (§  4),  385  (§  6), 


II,  *286.]  OF  ATTORNEYS.  611 

authority  than  other  general  attorneys,  because  they 
have  sometimes  the  power  granted  them  to  attorn  others 
in  their  place.  All  general  attorneys  may  levy  fines 
and  make  chirographs,  and  final  accords  in  all  pleas  as 
fully  as  those  whose  attorneys  they  are.  This  cannot 
be  (lone  by  special  attorneys ;  for  as  soon  as  parties  are 
at  accord  in  any  sort  of  plea,  that  proceeding  is  at  an 
end  ;  and  if  any  question  is  to  be  made  upon  the  accord, 
thereupon  begins  another  sort  of  plea,  and  of  another 
nature.  And  though  one  be  made  attorney  in  the 
existing  proceeding,  he  is  not  thereby  made  attorney 
in  the  future  proceeding,  unless  he  be  made  general  at- 
torney in  all  pleas  commenced  and  to  be  commenced. 

*3.  No  one  can  admit  persons  as  attorneys  by  our 
letters  patent,  except  us  and  our  Chancellor.  Neither 
ought  other  general  attorneys  to  be  admitted  save  be- 
fore our  Justices  in  eyres  and  in  full  court.  Special 
attorneys  cannot  be  admitted  except  by  us  or  our 
Chancellor,  or  other  person  whom  we  may  especially 
assign  by  our  writ  in  that  behalf,  or  the  Judges  in  full 
court,  whoever  they  be,  sheriffs,  or  freemen,  before 
whom  the  party  is  bound  to  plead  by  our  writ.  Where 
the  proceeding  is  commenced  without  our  writ,  a 
court  of  suitors  cannot  bear  record  of  attorney  ;  and 
therefore  no  attorney  can  be  admitted  in  such  a  court 
without  our  writ,  except  where  the  proceeding  is 
commenced  by  writ.  The  four  knights,  who  are  sent 
to  the  sick  persons  in  essoins  de  malo  lecti  and  de  inalo 
mlloB,  can  also  admit  attorneys.  If  any  person  offers 
himself  as  attorney  for  us,  or  for  any  other,  in  any  of  the 


612  BRITTOK  [II,  *286 1. 

aforesaid  cases,  and  being  challenged  by  the  adverse 
party,  is  not  admitted  as  attorney,  such  person  may  be 
committed  to  prison.  And  when  any  one  has  been  thus 
made  attorney,  he  cannot  retire  pending  the  proceeding 
without  the  consent  of  his  client. 

4.  When  two  or  more  are  made  attorneys  dis- 
junctively, whether  they  be  made  general  or  special 
attorneys,  *although  each  has  the  power  of  his  master, 
yet  the  essoin  of  one  attorney  will  be  invalid,  unless 
all  the  attorneys  be  essoined,  on  account  of  the  fraud 
which  might  be  practised  by  the  attorney  who  is  not 
essoined,  after  the  adverse  party  has  had  a  day  given 
him  as  against  the  essoiner  of  the  other  attorney,  and 
has  thereupon  left  the  court.  So,  when  any  one  has 
made  an  attorney,  and  has  then  appeared  in  court  and 
pleaded,  and  had  another  day  given  him  in  his  own 
person,  it  is  not  sufficient  at  the  next  day  that  he  alone 
should  be  essoined,  because  there  is  an  attorney  ;  nor 
that  the  attorney  alone  should  be  essoined,  because  it 
was  not  the  attorney  that  had  day  given  him.  It  is 
therefore  safer  for  both  to  be  essoined. 

5.  When  any  has  made  a  special  attorney  against  a 
certain  person  tenant,  and  the  tenant  vouches  to  war- 
ranty, the  attorney  does  not  keep  his  place  as  against 
the  warrant,  but  the  plaintiff  should  make  a  new  attor- 
ney in  the  plea  of  warranty,  or  else  he  will  lose  his  writ, 
if  the  warrant  take  the  objection,  as  will  be  said  of  hus- 
band and  wife  plaintiffs,  in  the  chapter  upon  warranties,^ 

'  This  is  another  reference  to  a  future  chapter  either  never 
supplied  or  lost.     The  same  chapter  is  referred  to  before,  li.  iii. 


II,  *287.]  OF  ATTORNEYS.  613 

and  the  attorney  would  in  such  a  case  be  liable  to  be  com- 
mitted to  prison.  So  likewise  in  all  cases  where  any 
one  offers  himself  for  attorney,  who  was  so  made  be- 
fore any  proceeding  existed  for  which  he  was  made  at- 
torney, as  where  the  attorney  was  appointed  before  the 
*writ  was  delivered  to  the  sheriff,  or  before  any  sum- 
mons was  made.  For  before  summons,  or  something 
equivalent  to  it,  the  proceeding  is  not  begun.  So,  where 
the  sheriff  merely  informs  a  person  that  he  is  to  appear 
in  court  on  such  a  day,  if  he  think  proper  to  do  so,  if 
any  one  offers  himself  as  the  attorney  of  such  person 
before  he  has  appeared  in  court,  the  attorney  is  liable 
to  challenge.  So  also  is  he  who  offers  himself  as 
attorney  of  one  not  named  in  the  writ  or  the  principal 
plaint,  before  the  party  whose  attorney  he  represents 
himself  to  be  has  appeared  in  court ;  as  where  people 
have  purchased  tenements  after  the  writs  have  been 
sued  out  against  their  feoffors,  and  have  friends  in 
court,  who  put  themselves  forward  as  attorneys  of 
the  tenants,  to  make  a  defence  against  the  riglit  of 
plaintiffs, — in  such  case  the  attorneys  are  liable  to 
challenge,  whether  they  have  warrant  or  no ;  for  be- 
fore such  tenants  have  appeared  in  court  in  their  own 
persons,  they  will  not  be  allowed  an  attorney.  And  in 
our  court,  however  the  practice  may  be  in  the  law 
Christian,  such  attorneys  are  challengeable  as  (jffer 
themselves  to  make  their  law  for  their  masters,  or  to 
swear  upon  their  souls.     So  also  in  all  cases  where  any 

c.  11.  s.  2.  The  point  intended  to  be  mentioned  may  be  found  in 
Bracton,  f.  381 ;  Fleta,  p.  408  (§  9). 


614  BRITTON.  [II,  *287. 

one  offers  himself  as  attorney  in  the  plea  of  Pone^ 
having  been  appointed  before  the  Pone  was  sued  out. 
6.  If  any  attorney  dies  pending  the  plea,  a  distinction 
is  to  be  ma,de,  whether  he  whose  attorney  he  was  is 
gone  across  the  sea  or  not.  For  if  he  be  not  in  England, 
— or  not  in  Ireland,  supposing  the  plea  to  be  there, — 
the  action  may  be  suspended  without  day  until  his 
return.^ 

1  It  is  plain  from  the  above  abrupt  conclusion,  as  well  as  from 
the  references,  occurring  in  several  parts  of  the  work,  to  future 
passages  and  chapters  which  are  not .  found  in  the  existing 
treatise,  that  Britton  in  its  present  form  is  incomplete.  See  be- 
fore, vol.  i.  p.  108  ;  vol.  ii.  pp.  411,  414,  612.  The  few  additional 
lines,  which  are  found  in  two  manuscripts  of  no  great  authority, 
do  not  appear  to  me  to  be  a  part  of  the  original  work,  which,  if 
continued,  would  probably  have  consisted  of  several  more 
chapters  following  the  arrangement  of  the  latter  part  of  Bracton 
and  Fleta.    See  the  Editor's  Introduction,  p.  xlv. 


INDEX. 


References  are  to  top,  or  running  pages. 

PAQE 

Abatement  and  intrusion 333 

Abatement  of  writ 254 

by  death  of  party 172,  227,  264,  419,  444 

by  marriage  of  female  plaintiff 264 

Abjuration  of  the  realm 13,  54,    55 

Accessories,  in  felony,  appeal  of 9,  10,    99 

in  homicide,  prosecution  of 29 

in  treason,  appeal  of 90 

in  trespass  109 

AccessoHum  sequitur  principale 120,  261,  471,  483 

Accidental  death  12,    33 

Accidental  loss,  disseisor  liable  for 286 

Accord,  plea  of 108,  236,  273 

termination  of  action  by 409 

Accretion  of  land  by  deposit  of  river 179 

Accruer,  title  by 180,  191,  193,  579 

Acquittance,  clause  of 210,  211 

Actio  alienari  non potest 480 

Admeasurement  of  dower  ;  see  Dower. 

of  pasture  305-308 

Adultery,  forfeiture  of  dower  by 554 

Advocate,  or  patron,  of  a  church 471 

Advowson,  actions  relating  to 467-495 

appendant 483 

cannot  be  conveyed  without  land 218 

how  valued 390 

615 


616  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Advowson   not  generally  assigned  in  dower 381.  530,  554 

of  abbey,  prebend,  &c 474 

Ael,  writ  of 463 

Afforcement  of  jury 380,  514 

Aids  pur  fere  fitz  chivaler  and  pur  file  marier 130 

Alienation  by  felons,  voidable 46 

restricted  by  deed 194,  309 

Allegiance,  obligation  of 368 

Alms,  tenure  in 181,  344 

Amendment  of  record 5 

of  false  judgment 7 

Amercemen  t,  power  of 151 

how  levied 159 

in  eyre 112 

of  absent  jurors 459 

of  losing  party  in  action ...  460 

Ancient  demesne 58,  182,  303,  358,  344,  345.  394,  446 

tenant  in,  not  a  freeholder 333 

Appeal  of  felony 9,  28,  81,  105 

enrolment  of 14 

form  of 83,  97 

jurisdiction  in 3,  48,  91 ,  92,    96 

trial  by  battle  in 84,    89 

Appeal  from  court  baron  to  lord .  590 

Approvers 13,    34 

Appurtenances 208,  219,  287-395 

Arraignment 31 

Arson 35 

Assigns,  effect  of  gift  without  mention  of 183,  191,    201,  437 

first  inserted  in  feoffments  in  favor  of  bastards. . . .  253 

Assise,  Justices  of 4 

Assise  of  common 299-305 

of  darreign  presentment 201,  467-491 

of  mortdancester,  376-460.     See  Mortdancester. 
of  novel  disseisin,  232-286.    See  Novel  disseisin. 


INDEX.  617 

References  are  to  top,  or  running  pages. 

PAGE 

Assise  of  nusance 316-328 

of  Utrum 496 

turned  into  jury 268-281,  457 

Astrer,  or  astrier 312,  456,  note. 

Attachment 105 

suits  pleadable  by 174 

Attaint 350,  409,  501-517 

before  judgment 504 

of  jurors  on  inquest  of  age 350 

where  it  lies 507 

Attaints  and  certifications,  by  what  Justices  taken 504 

Attorney,  authority  of 247,  610-614 

death  of  614 

general  and  special 247,  610 

general,  how  constituted 605.  610 

none  in  capital  cases 84 

special,  how  made ; 610,  612 

Attornment,  by  tenant  to  alienee 188,  220,  570 

of  homage 371,  373 

Avoidance  of  benefice,  entire  or  partial 474 

Bailiff,  his  authority  as  attorney 247 

Bailiffs,  exactions  of 76 

Banns  of  marriage 547 

Baronies,  not  to  be  dismembered 182 

chief  castles  of,  not  divisible  between  coheirs. . . .  393 

not  assigned  in  dower 522 

Bastard,  donee  to  him  and  his  heirs  cannot  alien 182,  569 

Bastardy,  exception  of 264,  436,  452 

how  proved 436,  452 

tried  by  jury  by  consent 436,  452 

Battle,  trial  by,  in  appeal 83,  88,  100 

in  writ  of  right 594,  596 

not  favoured 104,  422 

between  lord  and  tenant 370^ 


■618  INDEX. 

References  ai'e  to  top,  or  running  pages. 

PAGE 

l^east,  man  killed  by 13 

Bean  pleader,  fines  for 66 

Bees,  law  of 177 

Bench,  the  king's  court  so  called 78,  113 

Justices  of  the 17,  111,  392 

Besael,  writ  of 462 

Bishop,  prohibited  from  admitting  clerk  pending  plea  of  ad- 

vowson 495 

Bishop's  certificate,  authority  of 475 

Bishops,  cannot  alien  the  rights  of  their  church  182 

Blood,  corruption  of  31 

Boroughs,  farm  of 182 

privileges  of 165,  172 

Borrowing,  contract  of 129 

Boundaries,  settlement  of 258 

Bridges  and  roads  neglected 65 

Building    on    another's    land ;     rights    of    landowner    and 

builder 178,  234 

Burgage,  tenure  in 344 

Burglary 35 

Burning,  punishment  by 35 

Canon,  incapacity  of 598 

Cape,  process  by 593 

Castellans,  illegal  prises  by 77 

Certificate  of  ordinary 475,  547 

Certification 281,  504,  505,  506 

Challenge  of  jurors 25,  245,  277,  278. 

Champerty 78 

Champion,  fraudulent  voucher  of 99 

Charge  of  jury 280,  459,  501 

•Charters . .  .206-212 

date  of 211 

loss  of,  pleaded 122 

proved  by  witnesses  therein  named 211,  481 ,  509 


INDEX.  619 

References  are  to  top,  or  running  pages. 

PAGE 

Cheats  and  impostors 51 

Cheminage . , 63 

Chester,  Justices  of 6 

Clievage,  or  headmoney  of  villains 166 

'  Chief  lord,'  meaning  of  the  term 450,  note 

Church,  jurisdiction  of 24 

Church  lands,  aliened  with  consent  of  bishop  and  patron. ...  498 

recovery  of 496-501 

Cities  and   boroughs,   privilege  of,  in    enfranchisement  of 

villains 165,  172 

Clergy,  privilege  of 22 

Clerk,  process  against  in  trespass 109 

Clerk  of  the  market 3,  155 

Clerks  of  chancery  and  other  courts,  exactions  of 78 

Clerks,  purgation  of 23 

Cloth,  assise  of 79 

Collateral  descent 585 

Collusive  judgment  no  bar  to  dower 558 

•Common,  defined 296 

assise  of  299--305 

encroachments  on  275 

disseisin  of 299 

gift  of 299 

limitation  of  right  of '.  296 

right  of,  asserted  in  replevin 126 

severance  of 298 

seisin  of    308 

surcharge  of 305,  308 

waiver  of 297 

'Common  Pleas,  Justices  of,  4.     See  Bench. 

Common  property,  degrees  of  community  in 175 

Common  right,  disturbance  of  238 

Common  soil 266 

Concealment  of  felony,  amercement  of  grand  jury  for 25 

Condition  and  consideration  distinguished 197 


620  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Condition,  donor's  remedy  on  breach  of 273 

ejectment  for  non-performance  of ...  236 

fulfilment  of,  a  question  for  jury 270 

various  kinds  of 195 

casual 197 

copulative  and  disjunctive 198 

double 198 

enlarging  an  estate 199, 200,  435,  437 

negative , 195,  198 

possible  and  impossible 130, 197 

unlawful 131 

restrictive  of  estate 199 

Conditional  contract 130 

Conditional  judgment  in  favour  of  younger  brother 237 

in  plea  of  dower 539 

Confirmation,  charter  of 211 

effect  of 210,  480 

Consanguinity,  tables  of 464,  585 

Consecrated  objects  and  places 176 

Conspiracy  to  defeat  justice 79 

Contempt  of  court 469,  610 

Contribution  among  parceners 401,  406 

Convents,  abuse  of  hospitality  of 77 

incapable  of  purchasing  land  without  licence,. ...  186 

Conveyance  by  feoffment 181,  206,  207 

by  fine 188,  220 

by  recovery 186 

of  reversions  and  seigniories 188,  220 

Coparcener,    eldest,    has    no  prerogative    to    present  to  a 

church 468 

Coparceners,  not  heirs  to  each  other,  392,  580.     See  Parceners. 

Coroner 4,  6-14,  391 

election  of 6 

has  record  of  the  ple.as  of  the  Crown 6.  112 

has  record  of  appeals  of  felony 92.  94 


INDEX.  621 

References  are  to  top,  or  running  pages. 

PAQE 

Coroner  inquest  of 6 

judgment  before 31 

oath  of 6 

of  the  king's  liousehokl 3 

Coroner's  rolls  delivered  to  Justice  in  eyre 19 

Corporeal  and  incorporeal  property 175 

Corrody,  disseisin  of 238,  244 

Corrupt  verdict,  allegation  of 27 

Cosinage.  action  of 382-384,  462 

Counterfeiting,  appeal  of 28 

Counterfeiting  the  royal  seal  or  coin 20 

County  court,  jurisdiction  of,  in  trespass  and  debt 128 

in  writ  of  right 591 

Court  baron 588 

false  judgment  of,  remedied  in  the  king's  court .   123 

practice  in 123,  589 

record  of 123 

Court  Christian 437,  452 

jurisdiction  of 556 

reference  to 475 

usurpations  of 75 

Courts,  inferior  and  private,  abuses  of 76 

Covenant,  how  proved 509 

Crusade     {See  Pilgrimage) 605 

Curtesy  of  England,  estate  by 180,  212,  235,  273,  349,  445 

Customary  dower 196,  204,  237 

Customs,  local 2,  58,  394 

contrary  to  common  law  71 

Customs  levied  on  merchandize 80 

Cut-purses 5 1 ,  52 

DcDiiage  fesant,  aA-owry  of  distress 4  117,  125 

Damages,  in  Novel  Disseisin 280 

in  Mortdancester 459 

in  action  of  Dower 528,  529 


G22  INDEX. 

References  are  to  top,  or  ninning  pages. 

PAGE 

Darreign  presentment,  assise  of 467-491 

Date  of  instrument  should  be  expi-essed 130 

Daj',  divisions  of 438 

De  libertate  probanda,  writ 167 

De  nativo  Jiabendo,  writ 166 

De  odio  et  atia,  writ 102 

De  rat ionabili  parte,  action  so  called 387,  398—401,  405 

Deaf  and  dumb,  incapacity  of 131,  598 

Death  in  prison 38 

judgment  of,  in  inferior  court 14 

natural  and  ci  vil 474 

of  attorney  stays  suit 614 

of  tenant,  abates  writ 227 

Debt 128 

process  in  actions  of 110 

Deeds,  enrollment  of 211 

execution  of 211 

how  proved 481 ,  508 

witnesses  to,  211 481 ,  509 

Defence,  time  for 21,  599 

Deforce,  meaning  of  word 477 

Delivery  of  possession,   necessary  in  transfer  of  corporeal  prop- 
erty   180 

not  necessary  in  transfer  of  incorporeal  property.  186 
See  Livery  of  Seisin. 

Demesne,  meaning  of  word 431 

Deodand 12,  13,  33 

Deputies  of  Judges 6.  600 

Deraignment 562 

Descent,  canons  of 883,  394,  577,  584,  587 

collateral 585 

customary 301 

mode  of  pleading 453,  585 

See  Inlieritance. 
Devise  of  land  by  will 446 


INDEX.  623 

References  are  to  top,  or  running  pages. 

PAGE 

Difficulty  of  judgment 253,  273,  281,  597 

Disavowal  of  lord,  a  cause  of  forfeiture 121,  228,  363,  368 

Disclaimer 248,  253 

Disclaimer  of  tenure,  a  cause  of  forfeiture 121,  228,  363,  368 

process  for  recovery  of  tenement  upon, 
228,  368,  369 

Dismemberment  of  baronies  and  knights'  fees 59,  182 

Disseisin,  what 174,  222 

by  force  and  arms 283 

distinguished  from  trespass 275 

inquest  of  damage  in 253,  283,  285 

of  common 299 

peaceable,  with  white  wand 284 

remedies  for 238,  241 

various  instances  of 224-226 

Distress,  by  judgment  in  the  lord's  court 123 

disturbance  of,  an  act  of  disseisin 223,  228,  236 

excessive  or  illegal,  66 74,  127,  276 

for  aid  pur  faire  fttz  chivaler  or  pur  file  marier 120 

for  service  in  arrear 119 

sheriff  to  aid  in 265 

Disuser  of  fanchise 66,  157 

Divorce,  dower  defeated  by 520 

fact  of,  certified  by  ordinary 542 

suit  for 541 

Doubt,  benefit  of 27 

Dowager,  to  be  provided  with  a  house 531 

when  entitled  to  present  to  a  church 484 

Dowager's  court,  jurisdiction  of 532 

Dower,  admeasurement  of 438,  563 

at  the  church  door 518,  529,  543,  544 

by  assent  of  father 548 

by  custom 521,  529,  561 

customary,  forfeited  by  second  marriage 561 

disseisin  of 336 


624  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Dower,  establishment  and  assignment  of 522 

extinguished  by  felony  of  husband 32 

favoured  in  law  535 

forfeited  by  adultery 554 

how  to  be  assigned 537,  530 

not  increased  to  the  prejudice  of  heir 526 

not  subject  to  tlie  debts  of  husband 533 

lost  by  judgment  against  heir 561 

of  money  or  chattels 523 

plea  of,  governed  by  plea  relating  to  the  inheritance.  557 

reasonable 531 

seisin  of 267 

subject  to  crown  debts  of  husband 533 

unde  nihil  habet 533 

warrant  of 557,  563 

what  tenements  subject  to, 338,  531,  524,  535,  530, 

551,  559,  591 

Drowning,  death  by 13 

Duel  between  lord  and  tenant,  homage  fii'st   to  be  released.  370 
Duress,  contracts  invalidated  by 40, 183 

Earldoms,  chief  castles  or  heads  of,  not  divisible  between 

coheirs 393 

Ecclesiastical  courts,  abuses  of 68 

Ejus  est  interjxiytari  cvjus  est  dare 307 

Endowment  atfhe  church  door 205,  318,  369,  518 

English  language,  used  in  legal  proceedings 19  note 

Englishery,  presentment  of 13,  33 

Entry,  action  of 185,  302,   327,  427,  565,   573. 

action  of,  defended  either  as  a  possessor}^  or  as  a  pro- 
prietary action 571 

ad  terminum  qui  prceteriit 565 

recovery  by 202,  234,  note  238,  297 

defective,  transmitted  by  disseisor  to  true  owner 567 

in  the  per 566 


INDEX.  625 

References  are  to  to[),  or  running  pages. 

PAGK 

Enti'y,  in  tlie  per  and  c«t 566 

in  the  post 566 

several  forms  of  writ  of 566,  567,  568 

time  allowed  for 239 

Equity  of  redemption  of  mortgage,  not  allowed 434 

Escheat 31,  59,  61,  201,  500,  587 

writ  of, 192,  201,  202,  577 

Escheators  of  the  king,  lands  taken  by 71 

Esplees,  evidence  of  seisin 214,  440 

taking  of,  when  pleaded 440,  461 

Essoin 16,  403,  602 

de  citra  viare 604 

de  rnalo  lecti 604,  606 

de  malo  veniendi 603,  606 

de  malo  villce 606 

de  servitio  Regis 602,  603,  608 

de  servitio  Regis  ceterni 602,  603 

de  idtra  mare 604,  606 

enrolment  of 601,  607 

in  action  of  Naif ty 167 

in  assise  of  Mortdancester 364 

none  allowed  to  disseisor 167 

none  in  capital  cases 84 

of  jointenants 607 

time  allowed  in 240,  605,  606 

when  and  wliere  entered >•! 602 

Essoiners 603 

when  required  to  find  pledges 604 

Estovers 314 

remedy  for  disturbance  of 314 

Estrays 57,  177 

Ex  Contractu,  obligation 129 

Ex  delicto,  obligation 129 

Exceptions  in  action  of  Dower 538,  560 

in  action  of  Entry 573 

40 


626  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Exceptions  in  assise  of  common 302,  305 

in  assise  of  last  presentation 470,  489 

in  assise  of  Mortdancester 424,  456 

in  assise  of  Novel  Disseisin 253,  267 

in  assise  of  nusance 323,  328 

in  assise  of  Utrum 498,  500' 

in  abatement  of  writ 254 

to  the  Judge 253 

to  the  person 264 

Exceptions  peremptory  and  dilatory 253 

Excessive  distress 66,  74,  127,  276 

Exchequer,  Court  of 4,  80,  111 

Excommunication,  exception  of 260 

Execution,  disturbance  of 67 

Execution  for  felony,  various  forms  of 551 

Exigent 10,  29 

Exile  of  villains 565 

Extenta  manerii 388 

E^'re  of  Justices. 

proceedings  in 15,  112 

chapters  of 20 

conclusion  of Ill 

opening  of 16 

False  imprisonment 40 

appeal  for 103 

False  judgment,  writ  of 266 

Falsification  of  writs 28,  254 

Farm  of  the  county  and  hundreds 58,  73 

Farms 329,  331 

Fealty,  ceremony  of 41,  152,  366,  367 

Fee,  various  meanings  of  word 435 

Fee  farm 343 

Felo  dese 33 

Felons,  gifts  by 182 


INDEX.  627 

References  are  to  top,  or  running  pages. 

PAGE 

Felons,  trial  of 20,  28 

Felony,    indictment  of,   an    excuse  for  not  answering  in 

a  civil  action 602 

plea  of 450,  499,  551 

forfeiture  of  land  by 30,  33,  46,  90 

of  chattels  by 30,  33,  38 

Feme  covert ;  see  Wife. 

Feoffment 181 

FercB  naturce,  animals 176,  177 

Finding,  title  by 176 

Fine,  avoidance  of 454 

conveyance  of  seigniory  by 188,  220 

enforced  against  tenant  by  writ  of  judgment 372 

infant  bound  to  answer  to 481 

operation  of,  in  barring  reversions 454  note 

Fishery 227 

common  of 326 

Force  and  arms 283 

Forceable  disseisins,  punished 283 

entry,  effect  of  upon  the  title 255,  273,  561,  567 

Forestallers. . .   69 

Forfeiture  of  chattels  of  felons 30,  33,    38 

by  denial  of  lord's  title 121,  228,  363,  368 

of  felons'  goods 30,    90 

of  felons'  lands 30,  33,  46,    90 

of  outlaws 10,  44,    45 

Form  of  gift,  to  be  observed 193 

Formedon,  writ  of 427 

Fortification  of  houses  without  license 64 

Found  property,  right  to 57 

'  Four  men '  of  vill 15 

Franchise,  claim  of 15,  16,    62 

Frankalmoigne 343,  496 

Frank-marriage 520 

Free  farm,  tenure  in 343 


628  INDEX. 

References  are  to  top,  or  running  pages. 

PAGK 

Freedom  favoured  by  law 165 

Freehold,  what 223,  225,  250,  431  note. 

how  acquired  250 

by  wrong 251 

Fresh  force 174 

Fugitive  villain  may  recover  against    his  lord   by  assise, 

note 164,  204 

pursuit  of 166 

Gaol  delivery 39 

Justices  of 5 

Gaols,  defects  of 72 

Gift 181 

of  land,  common  form  of 207 

Grand  jury 17 

Grand  Serjeanty 336,  341 

Great  assise,  where  allowed 60,  594 

no  attaint  upon  verdict  of 512 

Guardians,  rights  of 338,  350,  351 

Guest,  host  responsible  for 43 

Half  blood,  inheritance  by 580,  583 

Hamsoken   70,  148 

Heirs,  cannot  be  purchasers  193 

near  and  remote 576 

of  donor,  when  bound  to  warranty 183 

of  full  age  may  hold  possession  against  the  lords 335 

'  Heirs,'  word  not  necessary  in  grant  of  a  fee 435 

Heresy 35,  247 

Heriot 376 

Hoghenhine 42 

Homage 353,  373 

action  against  lord  for  refusing 360,  362 

ancestral 355 

ceremony  of 364,  365 


INDEX.  620 

References  are  to  top,  or  running  pages. 

PAGE 

Homage,  for  wliat  tenements  due. . .   356,  357,  370 

inheritance  barred  by 582 

not  reserved  in  a  gift  of  land 208,  366 

obligation  of 367 

of  pensioner  or  servant 365,  371 

remedy  against  tenant  refusing 362 

released  before  battle  between  lord  and  tenant . . .  370 

Homicide,  prosecution  of 29 

appeal  of 91 

Hospitallers 103,  596 

Hotchpot 396 

Household,  king's,  coroner  of 3 

Steward  of,  see  Steward. 

Hue  and  cry  42,  147 

Hundred,  amercement  of 32 

held  in  private  hands 58 

Hundred  court 6,    18 

Hundreders 4 

Hunger,  an  excuse  for  theft 35 

Husband,  disseisin  of,  by  wife 228,  241,  244 

gift  by,  to  wife  and  another 192 

Husband  and  wife,  gifts  between,  void 186,  192 

their  power  over  wife's  land 183 

See  Wife. 

Idiot,  incapacity  of 183,  186,  456,  598 

Idiot  a  nativitate,  in  custody  of  the  king 349 

Incapacity  of  party  to  suit 260,  456 

Incorporeal  tenements,  disseisin  of 287 

Incumbrance  of  church  by  bishop 475 

Indentures 207 

Indicavit.  writ  of 557 

Infency  of  husband  or  wife,  a  bar  to  dower 553 

of  party  to  action 404,  405,  448,  456,  481,  598 

See  Infant. 


630  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Infangthef 48,  62,  183,  187 

Infant,  cannot  disclaim 118,  394 

capable  of  doing  homage 358 

incapacity  of 135,  183,  186,  318 

liability  of,  as  vouchee 410,  480 

must  answer  to  writ  of  Entry  founded  on  disseisin, 

404,  448 

must  answer  to  fine 481 

See  Infancy. 

Inheritance,  by  ascendants 380,  386,  583 

questions  of,  tried  by  writ  of  right 234,  576 

rules  of 383,  384,  394,  577,  588 

Inheritance.    See  Descent. 

Inlawry 44,  46 

Inquest,  Coroner's 6,  8 

of  age  of  heir,  tenant  in  capite 349 

Interdict 543 

Interpretation  of  royal  grants  reserved  to  the  king 337 

Intrusion , 333 

Investiture,  by  lord  of  fee 377 

Ireland,  Justices  of 6 

Island,  formation  of,  in  river  or  sea 179 

property  in  newly-discovered 178 


Jointenancy 189 

Jointenants,  assise  must  be  by  all 230 

Jointenement,  disseisin  of 230 

Judge,  exception  to  the 108,  253,  302,  600 

Judgment,  amendment  of 5 

in  former  suit,  plea  of 454 

creditor,  his  estate,  435 445 

without  writ,  void 265 

Judicial  authority  not  delegable 6,  600 

must  be  derived  from  the  Crown 600 


INDEX.  631 

References  are  to  top,  or  running  pages. 

PAGE 

Judicial  franchise,  usurpation  of 62,  65 

Judicium  non  sui  judicis  non  obligat 600 

Juises,  or  instruments  of  correction 148,  157,  158 

Jurisdiction,  exception  to 85,  99 

of  Coroner G 

of  County  Court 589 

of  Courts  Baron 5,  588 

of  Justices  in  Eyre 3,  15,  133 

of  the  King 2,  3 

of  the  Royal  Courts 2.  G 

of  the  Steward  of  the  Household 3,  140 

of  the  Court  of  Exchequer 4 

must  be  derived  from  the  crown GOO 

usurpation  of 157 

Jurors 407,  409 

amercement  of  absent 459 

challenge  of 25,  278,  459 

disagreement  of 26,  280 

majority  of,  to  prevail 26 

oath  of 26,  278,  489,  500 

to  inform  themselves  of  facts  before  trial 403 

Jury,  charge  of 26,  280,  460,  501 

discharge  of,  without  verdict 26,  270,  488,  491 

consent  of  parties  to  try  question  by,  how  compel- 
led  458,  509,  263 

how  compelled  to  give  verdict 381 

service  upon,  evidence  of  freedom 172 

upon  question  of  legitimacy  by  consent 186,  436 

upon  question  of  villenage 263,  508 

Justices,  authority  of 2 

itinerant,  jurisdiction  of 3,  14,  111 

special,  appointed  by  letters  patent 242 


Kindred,  table  of. 584 


632  i:n'dex. 

Referencee  are  to  top,  or  running  pages. 

PAGr 
King  cannot  alien  the  right  of  his  crown 183 

his  grants,  interpreted  by  himself 327 

his  jurisdiction 3 

his  legislative  power 2 

his  right  as  guardian  of  tenant  in  capite 338,  349,  351 

not  bound  by  limitation  of  time 182 

plea  that  he  is  interested  in  a  suit  269,  455 

when  bound  to  warranty  420,  454 

writ  abated  by  his  death 172 

King's  Bencli,  Justices  of 3 

highway 266- 

officers,  complaints  of 15,  71 

Knight,  degradation  of 171 

legal  duties  of,  note 387,  504 

punishment  for  striking 104 

Knighthood,  exactions  for  evading 72 

villain  enfranchised  by  165,  171 

Landmarks 67,  148,  231 

Lapse,  presentation  by  bishop  upon 472 

Larcency 47 

appeal  of 96^ 

Last  presentation,  assise  of 469-491 

See  Darreign  presentment. 

Lastage 63 

Law,  wager  of 272,  40& 

Leases  for  years     {See  Termor) 272,  330,  432  7wte,  570 

Leather  and  wool,  customs  on 80 

Legislative  power  of  King  and  Council 1 

Legitimacy,  tried  by  court  Christian 43& 

tried  by  jury  by  consent 264,  436 

presumption  of 347 

Lepers,  incapacity  of 183,  186,  260. 

Lessee  for  years  ;  see  Termor. 

Lestage :  • 63^ 


INDEX.  63a 

References  are  to  top,  or  running  pages. 

PAGE 

Limitation  of  actions  61,  171,  462,  497 

Lis  pendens  448,  455 

Livery  of  seisin 214,  218,  230 

by  rod  or  glove 215 

by  attorney 218 

See  Delivery  of  possession. 

Locality,  statement  of,  in  writ 257 

London,  custom  of 561 

Lord,  his  right  of  entry  after  death  of  tenant,  223,  237,  376, 

378,  587. 

Lords  of  liberties,  their  oath  in  the  Eyre 17 

Lunatic,  incapacity  of 131,  183, 186,  456,  569,  598 

Mainpast 10,  149 

Maintenance  74,  78 

Market,  clerk  of  the  king's '•),  155 

disturbance  of 326,  328 

inquest  of 156 

not  to  be  held  within  ten  miles  of  Eyre 18 

overt,  purchase  in 50 

Marriage 518 

at  church  door 541 

estate  given  in,  subject  to  hotchpot 396 

favoured  by  law 164 

gift  in,  made  without  charter 209 

not  to  be  forced 353 

of  heir  minor,  right  of  lord  to 351 ,  .'553 ,  405 

rights  of  the  king  as  lord 61 

right  of,  is  a  chattel  devisable  by  testament 338 

secret,    may  legitimate  the  issue,   but   not  give 

right  to  dower 519,  543 

to  be  tendered  to  wards  under  age 352 

validity  of,  determined  by  Court  Christian,  274, 

436,  523,  542.  .547 
Marshal,  Earl,  his  oflfice 3.  141 


634  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Master,  action  by,  for  damage  to  servant 109 

3Iaiheni,  appeal  of 103 

Measures  and  weights 68,  487 

Meat,  stale  or  diseased 69,  158 

Melior  est  conditio  possidentis 230,  231,  241 

Menace,  writ  of 9,  10 

Merchet 161,  203 

Mesne  profits 285 

Mesne,  writ  of 121,210 

Mill-race 318 

Ministers  of  the  king,  delinquencies  of 71 

Minor  ;  see  Infant. 

Misdescription 442 

Misjoinder  of  plaintiffs 256 

Misnomer 256,  450 

Mixed  action ,   385-392 

Money,  forgery  of 28 

Monks,  incapacity  of 131,  182,  184,  186,  569,  598 

Monster 349 

Mortdancester,  assise  of 379,  385 

brought  by  heir  against  his  lord 379 

cannot  be  brought  by  one  parcener  without 

the  others    384 

lies  only  between  strangers  in  blood. . .  .381,  383 

pleadings  in 424-455 

process  in ...  402-408 

trial  of 408,  458 

within  what  degrees  permitted 380,  381 

Mortgage,  construction  of  condition  in 200,  432-435 

Mortmain 68,  186 

Murage 63 

Murder 32 

Mute,  penance  for  standing 22 

Naara 114 


INDEX.  635 

References  are  to  top,  or  ininning  pages. 

PAGE 

Naifty 159 

action  of 167,  168 

trial  in,  by  suit 169,  170 

Ne  adviittas,  writ  of 495 

I\'ecessitas  vincit  legem 522 

Nemo  potest  simul  esse  hceres  et  dominus 362,  588 

Nonjoinder,  exception  of 256,  264,  267,  384,  444 

of  parcener  in  writ 256,  444 

Non-temire,  plea  of 448,  449 

Novel  disseisin,  assise  of 222 

judgment  in 282 

parties  to 226,  242 

pleadings  in 253-267,  303 

process  in 242,  245 

taken  in  absence  of  tenant 301 

trial  of 278-281 

where  allowed 233,  238 

Nudum  pactum ,   129 

Nullum  tempus  occurrit  regi 182 

Nusance 290,  316-328 

legal  remedies  against,  by  assise 317,  319,  320-323 

legal  remedies  at  the  sheriff's  tourn 319 

legal  remedies,  by  Justicie.s 320,  323 

pleadings  in  assise  of 323-328 

treated  as  a  disseisin 227 

view  in  cases  of ...  245 

Oath,  manner  of  taking 279 

nature  of 500 

Obligation,  nature  of 129 

Occupancy,  title  by 170 

Office  in  fee,  disseisin  of 228,  2-15 

Ordination,  villain  enfranchised  by 165,  171 

Outfangthef 62,  187 

Outlawry , 41 


636  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Outlawry  after  death . .    45 

fraudulent 45 

of  women,  called  waiver 43 

plea  of 451 

process  of 10 

Parcener,  disseisin  of  one  by  another 232,  300,  398 

Parceners,  assise  between 300,  444 

contribution  among 406 

do  homage  and  fealty  to  eldest  parcener.  .351,  357,  367 

must  sue  together 140,  256,  299,  384,  444 

See  Coparceners. 

Parish,  manor,  and  hamlet 268 

Parson,  cannot  alien  without  bishop  and  patron 569 

his  remedy  to  recover  common 294 

his  remedy  to  recover  land 496 

Parsons,  two  of  one  church 497 

Parties,  abatement  for  want  of 224,  454 

Partition  of  estate  between  parceners  385-307 

Pasture  defined 296 

admeasurement  of 305 

common  of 296 

Patent  of  Justices 249,  408 

Paternity,  presumption  of 346 

Pauper's  suit  without  pledges 243 

Peine  forte  et  dure 21,  85 

Penalty,  contract  under 131 

Penance 21,  85,  95 

Pendente  lite,  alienation 448 

Pending  action,  plea  of 454 

Pension  reserved  from  a  church  to  save  right  of  infant 472 

Perambulation  for  fixing  of  boundaries 258,  460 

Perjury 502 

degrees  of 506 

procuring  of,  criminal .502 


INDEX.  637 

References  are  to  top,  or  running  pages. 

PAOE 

Person,  exception  to  the 260 

Personal  actions 1 

Petty  larceny 48,  52,  100,  102 

Petty  serjeanty 341 

Pilgrimage 602,  606 

general 240,  604,  606 

Pledges  for  appearance  of  defendant 108,  167,  246 

of  prosecution 105,  114,  167,  242,  379,  402 

when  required  from  essoiners 604 

Pone,  writ  of 168,  589,  595 

Pontage 63 

Possessio  fratris 580 

Possession,  gifts  by  persons  out  of 210 

title  by 251 

See  Seisin. 

Pound,  breach  of 148 

Pregnant  women,  execution  of,  delayed  till  delivery 101 

Prescription,  none  against  the  right  of  the  Crown 61 

Presentation,  last,  assise  of 467-91 

See  Darreign  presentment. 

Presentments  in  the  eyre 19 

Presentments  of  murder  and  liomicide 42 

Prisage  of  spices,  silk,  &c 80 

Prison,  breach  of 36,  72 

private 40,  67 

felons  to  be  detained  in  king's 67 

Prisoners,  actions  by  and  against 39 

contracts  by 40 

death  of    76 

escape  of 37,  73 

fees  to  he  taken  of 39 

treatment  of 37 

Process  in  action  of  debt ...    110 

in  action  of  trespass 105,  107,  110,  132 

in  assise  of  novel  disseisin 242,  245,  246 


038  INDEX. 

References  are  to  top.  or  running  pages. 

PAGE 

Process  in  assise  of  mortdancester 402,  405 

in  assise  of  darreign  presentment 469 

in  county  and  liundred  court 132 

in  court  baron 123,  132.  589 

in  real  actions 1 74 

Production  of  deed  by  adverse  party  in  action  not  compelled.  207 

Proof,  various  modes  of 545 

Proprietary  action 575 

Protection,  letters  of 605,  606 

Prothonotary 279 

Provers 101 

to  be  sent  to  the  king's  prison 40,  67 

Provost  of  vill 17 

Proximity  of  blood,  tried  only  by  writ  of  right 223,  575 

Prudehomme,  wliat 307 

Purchase 175,  176 

by  villain 203,  206 

conditional 193-200 

joint 189,  193 

Purprestures 60 

Purveyance 77 

Quare  inipedit,  action  of 484,  487,  492 

Quare  non  admisit,  writ  of 494 

Quare  non  permittit,  writ  of 487,  493  iwfe 

Quid  juris  clamat,  writ  of 188  note 

Quitclaim,  charter  of 188,  211 ,  453 

requisites  to  validity  of 210,  453 

plea  of 273,  453 

Quo  jure,  writ  of 809-314 

Quo  ivarranto,  writ  of 64 

Quod  permittat,  writ  of    400 

Rape 4<) 

appeal  of 96 


INDEX.  639 

References  are  to  top,  or  running  pages. 

PAGE 

Rape,  inquest  of,  before  coroner 14 

Real  actions 575 

Reclaimer  of  jurisdiction  by  lord 531 

Record,  authority  of 504,  506 

courts  of 113 

of  Justices 5,  504 

of  court  baron 123 

proof  by,  83 451 

Redisseisin 328 

Redubbers  of  clothes 09,  147 

Re-entry,  remedy  by 338 

Release,  liow  proved 373 

Relief 374 

distinguished  from  heriot 375 

Remainder,  in  gift  of  land. .    209 

'  Removable '  canon  or  monk,  incapacity  of 131,  598 

Rent  charge,  grant  of 220 

Replevin,  action  of 113,  126 

Representation,  right  of,  in  inheritance 578,  582 

Resort 168,  465 

Restitution  of  conjugal  rights,  suit  for 546,  547 

Resummons  of  defendant 406,  598 

Reversion  201 

Reversion  barred  by  fine 453 

conveyance  of 189,  514 

dower  of 227,  531 

Right  of  dower,  writ  of 562 

patent,  writ  of 575 

close,  writ  of 344,  446,  597 

of  marriage,  writ  of 338 

of  ward,  writ  of 337 

Robbery 46,    98 

Rod,  livery  of  seisin  by 315,  345 

Rolls  of  Coroner 14,  19 

of  Justices 5,  504 


640  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE 

Rolls  of  the  clerk  of  the  market 15b 

Royal  charters,  construction  of 207 

Royal  demesnes,  privilege  of,  in  enfranchisement  of  villains, 

165,  172 

Sakeber 48,  150 

Same  descent,  exception  of,  in  assise  of  mortdancester 424 

not  allowed  to  be  pleaded  by  vouchee 421 

Sanctuary 18 

Seal,  forgery  of 20 

illegal  use  of 20 

vise  of  borrowed 211 

Seals,  use  of 144,  308,  600 

Seditious  rumours 70 

Seigniory,  conveyance  of 188,  220 

Seisin,  definition  of 212 

livery  of 213 

of  heir 251 

of  pasture,  how  acquired 293 

simple  ;  see  Simple  seisin. 

Serjeant,  false  pleading  by 84 

Serjeanty,  tenure  by 336  note,  341 

Servitudes  or  easements 287 

seisin  of 293 

Severance  of  jointenancy 191 

Sheriff 4,  72,    75 

neglect  of  duty  to  parties  to  suit 591 ,  601 

oath  of 16 

Sheriff's  court 113 

tourn 146 

redress  of  nusance  at 291 

Sic  utere  tuo  ut  alienum  non  loedas 289 

'  Simple  seisin,'  lord  entitled  to,  on  death  of  tenant. 376 

See  Lord. 
Slavery ,  origin  of 159 


INDEX.  641 

References  are  to  top,  or  running  pages. 

PAGE 

Socage,  tenure  in 336  note,  340,  341,  521 ,  529 

guardian  in 339 

Sokeman,  tenant  in  ancient  demesne 344 

cannot  alien  his  land 183,  203 

immunities  of 344 

Sorcery 35,  147 

Statute    de   donis  conditionalibus,  alteration    of    law    by, 

194  note,  196  note, 
quia  emptores  terrai'um,,  effect  of,  194  note,  197  note, 

208,  336 
Statutes  : — 

Magna  Charta,  c.  1 24 

c.  2 374 

c.  3 358,  360,  374 

c.  3,  4,  5 350 

c.  6 352 

c;.  7 246,  353 

c.  10 110 

c.  11 4 

c.  12 4,  505 

c.  22 30 

e.  25 153 

c,  27 330 

c.  35 146 

c.  36 11,  185 

c.  63 466 

Statutum  Hibernice  de  Cohceredibus  (14  Hen.  III.) 357 

Statute  of  Merton  (20  Hen.  III.) 

c.  1 247 

c.  6,  7 352 

c.  6 354 

o.  7 353 

of  Marlborough  (52  Hen.  III.) 

C.6 199 

C.8 328 

41 


642  INDEX. 

References  are  to  top,  or  rimning  pages. 
Statutes  : — 

PAGE 

c.  10 146,  151 

c.  16 335,  376 

c.  17 350 

c.  18 7 

c.  19 5 

c.  23 7 

c.  23 144,  839 

c.  26 32 

of  Acton  Burnell  (2Edw.  I.) 138 

of  Westminster  I.  (3  Eihv.  I.) 

c.  1 1,    22 

c.  2 352 

c.  4 14 

c.  9,  10 11 

c.  10 13 

o.  10,  26 6 

c.  12 21 

0.  14 10 

c.  15 150 

c.  21 351 

c.  22 337,  352 

c.  24 286 

c.  38 503 

c.  42 610 

c.  45 338 

c.  49 549 

c.  51 277 

Officium  Coronatoris  (4  Edw.  I. ) 6,  8,  13,  14,  16 

Statutum  de  Bigamis  (4  Edw.  I.) 

Preamble 1 

c.  5 24 

c.  6 ,  183 

Statute  of  Gloucester  (6  Edw.  I.) 

e.  1 15.  16.  286 


INDEX.  CAZ 

References  are  to  top,  or  running  pages. 
Statutes  :— 

PAOE 

c.  4 196,  343 

c.  5 350 

c.  5,  7 565 

c.  9 5 

Statutum  de  Militibus  (6  Edw.  I.) 73 

Statute  of  Mortmain  (7  Edw.  I.) 186,  234 

of  Wales  (12  Edw.  I.) 

C.5 6 

c.  12 536 

Provisiones  in  Scaccario  (12  Edw.  I.) 4 

Statutum  de  Moneta  (12  Edw.  I.) 21.  28 

Statute  of  Westminster  II.  (13  Edw.  I.) 28 

c.  1 193,  209,  580 

e.  4 ....  559 

c.  7 564 

c.  8 308 

c.  10 610 

c.  11 145,  339 

c.  14 182 

c.  16 353 

c.  19 144 

c.  31 343 

c.22,25 315 

c.  25 226,  227,  228,  314 

c.  25,  26 286 

c.  26 328 

c.  27 610 

c.  32 ; 233 

c.  34 228,  554 

c.  35 3.38 

of  Merchants  (13  Edw.  I.) 329 

of  Winchester  (13  Edw.  I.),  c.  2 ,32 

Circumspecte  agatis  (13  Edw.  I.) 24 

Statute  of  Exeter  (14  Edw.  I.)   8.    19 


644  INDEX. 

References  are  to  top,  or  running  pages. 
Statutes  : — 

PAGE 

Statute  of  Westminster  III.  (18  Echv.  I.), 

c.  1 207,  209,  36G 

Modus  levandi  fines  (18  Edw.  I.) 188 

Artieuli  super  Chartas  (28  Edw.  I.) 

c.  3 3 

c.  10 27 

Statutum  de  Prcerogativa  Regis,  c.  2 13,  18,  338 

Assisa  Pants , 153, 154,  155 

Statutum  de  Pistoribus,  c.  2 154 

de  Sacramentis  Ministrorum  Regis 16,    17 

Steward  of  the  household,  his  jurisdiction 3,  141 

Strangers,  under  the  king's  protection 105 

Sturgeons  and  whales,  king's  right  to 57 

Subornation  of  jurors 27 

Subtraction  of  homage,  cause  of  forfeiture 369 

Succession,  title  by 180,  252 

Sufferance,  common  by 297 

Suit,  proof  by 113,  545 

of  kindred,  proof  of  villenage  by 169,  170,  449,  509 

Suitors  judges,  in  what  courts 6,  113 

Summons,  various  kinds  of, 597 

in  assise  of  Mortdancester 402,  406 

in  writ  of  right 590,  597,  599 

of  jurors  in  Disseisin 243 

Supposititious  children 345,  348 

Surname,  double 259 

Tail,  estate 184,  194  note,  455 

Tanners,  not  to  be  butchers 69 

Templars 182.  596 

Tenant  for  life,  feoffment  bj'  185 

Tenants  in  chief,  dismemberment  of  fees  by 182 

Tenure  does  not  affect  status 1 62 

Tenures,  various  kinds  of 336.  350 


mDEX.  645 

References  are  to  top,  or  running  pages. 

PAGE 

Term,  for  life  and  years 431  note,  569 

Termor,  assise  against 422,  437 

Termor   feoffment  by 185 

Ills  remedy  if  ejected .  329,  431  note 

nature  of  his  estate. . , 570 

his  right   suspended  during    minority   of  lessor's 

heir 330,  339 

ousted  by  dowager,  how  compensated 560 

Thefbote 69,  148 

Theft 47,    98 

how  punished  upon  fresh  suit 47,  150 

•  Time  of  peace,'  how  undei'stood 471 

Tithing 10,41,149 

mode  of  admittance  into 153 

Title  to  land 250 

by  possession 251 

Title-deeds,  detainer  of  by  widow 555 

Tourn  ;  see  Sheriff's  tourn. 

Tournaments,  injui-ies  at 104 

Traverse,  impost  so  called 62 

Treason 34 

appeal  of 82 

how  prosecuted 20 

petty 34,    35 

Treasui'e  trove  14,     56 

Trespass  contra  pacem,  process  in 107 

expeditious  process  in  special  cases  of 110 

form  of  proceeding  in 105 

punishment  in 104 

Trial  of  appeal  of  felony 87,  95,  100 

Trial  of  felons  at  the  king's  suit 29 

of  assise 279,  459 

of  attaint 574 

of  status  of  villenage 168,  263 

Triplication 425,  428 


646  INDEX. 

References  are  to  top,  or  running  pages. 

PAGE. 

Uncertainty 366,  267 

Uncouth,  guest  so  called 42 

Usage,  easement  founded  on 28& 

Usury     147 

Utrum,  assise  of 496-501 

the  parson's  writ  of  right 497 

Vacations 277 

Vee  de  naavi 4,  62,  114 

Ventre  inspixiiendo,  proceedings  in 345 

Ventre  sa  mere,  infant  in,  may  inherit 575 

Verge  royal 2,  3,  141,  155,  156 

inquest  of  market  within 156 

jurisdiction  of  the  Steward  of  the  Household 

within 141 

Vicarage,  vacant,  merged  in  parsonage 474 

Vicinage,  common  by 297 

View,  process  of 242,  282,  403,  408,  443,  589 

in  assise  of  nusance 2^5 

Villain,  actions  by  and  against 164 

alienation  of 163 

assise  by,  against  lord  for  his  wife's  tenement 229 

belonging  to  several  lords 205 

by  birth 163 

by  recognizance 160 

cannot  be  devised 163 

contracts  by , 131 

conveyance  by 205 

enfranchisement  of 164,  165,  171,  203 

incapacity  of 133 

Villain,  purchase  by 203 

Villains,  their  lives  protected 160 

no  distinction  among 163 

Villenage 159-173 

exception  of 165,  360,  302,  401,  453,  508 


INDEX.  647 

References  are  to  top,  or  running  pages.  » 

PAGE 

Villenage,  proof  of,  by  suit  of  kindred 169,  449,  509 

tenure  in 345 

tried  by  assise  by  consent  of  parties 263,  508,  510 

Volenti  nonfit  injuria  1 30 

Voucher  of  claimant  adverse  to  lord,  a  forfeiture 555 

of  warrant  in  Disseisin 285 

in  larceny 49,  97 

in  Mortdancester 410 

in  plea  of  dower 536 

in  writ  of  right 593 

Wager  of  law,  no  attaint  of  proceedings  in 24,  512 

when  admitted 125 

Waifs 57.  148 

Walrand,  Robert  de,  penned  the  Statute  of  Marlborough, 

c.  6 200 

Wand,  white,  sign  of  peace 284 

Wardship 336,  349-351 

incident  to  what  tenure 336 

Warrant,  voucher  of  ;  see  Voucher. 

of  dower 558 

Warranty  by  homage 355-359 

clause  of,  in  charter  of  feoffment 210 

obligation  of 184,  355,  413 

of  charter,  writ  of 121,  478 

Warren,  right  of 62,     66 

Waste  b}'  dowager, 565 

by  guardians 351,  410 

entry  by  reversioner  on  account  of 235 

Watch,  neglected 67,  148 

Watercourse,  disturbance  of 317 

Watering-place,  common 318 

Way,  disturbance  of '. 317 

Way  and  water,  rights  appurtenant  to 290 

Weights  and  measures 68,  158 


648  INDEX. 

•  References  are  to  top,  or  running  pages. 

PAGE 

Weirs,  nusances  in 67 

White  rod,  sign  of  peace 284 

Whitetawers 69  riote,  163 

Wife,  co-defendant  with  husband 255,  455 

incapacity  of 183,  186,  272,  598 

of  felon,  punishable  as  an  accomplice 100 

See  Husband. 

Wines,  assise  of 80,  158 

Withernam 115 

Witnesses,  proof  by,  in  Court  Christian 542 

Wizards 51 

Women,  appeals  by 95 

Wool,  customs  on 80 

Wounding 14 

appeal  of 103 

Wreck 14,  57,  62,  148,  178 

Writ  de  cetate  probanda 350 

de  Ubertate  probanda.  ...   167 

de  magna  assisa  eligenda 595 

de  native  habendo 166 

de  odio  et  atia 102 

de  pace  liabenda 594 

de  rationabili  parte 439 

de  terris  liberandis 350 

de  ventre  inspiciendo 345 

effect  of  abandoning 236,  247 

false  or  forged 28 

judicial 265 

jurisdiction  limited  by 5 

oath  administered  without 7 

of  Ael §81,  462 

of  Assise  of  Common 299 

of  Cosinage 381 .  463 

of  customs  and  services 363 

of  Entry 565-574 


INDEX.  649 

References  are  to  top,  or  running  pages. 

PAGK 

Writ  of  Escheat 191,  201,  577 

oiformedon 427 

of  Indicavit 557 

of  Partition 387 

of  Pone 589,  591,  595 

of  Quare  impedit 492 

of  Quare  non  adrnisit 495 

of  Quare  non  permittit 487,  49y 

of  Quid  juris  clamat 188  note 

of  Quo  Jure 289 

of  Quo  warranto 64 

of  Quod  permittat 460 

of  right  close 344,  446,  597 

of  right,  defended  as  a  possessory  action 572 

of  right  of  dower 562 

of  right  of  marriage 338 

of  right  of  ward 337 

of  right  patent 588-601 

of  right  patent  in  county  court 588 

of  right  patent  in  court  baron 588 

of  waste 351 

to  compel  warranty  in  plea  of  riglit 594 

to  compel  warranty  in  prosecution  for  theft 50 

oyer  of 249 

pending,  plea  of 236 

Writs,  distinction  of,  to  be  observed 126 

Year,  day,  and  waste  30,  60 

Years,  estate  of  lessee  for 229-231 

Younger  brother,  entry  by    223 

entitled  to  possession  until  appearance  of 
the  right  lieir 237 


SOUTHERN  REGfni:;?;?"*°^"'« 


OCT 


3  0 


m 


^  i  0  7  li 


A     000  704  820     o 


